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CATHOLICS AND THE DEATH PENALTY
PANEL DISCUSSION
PANELISTS:
KEVIN M. DOYLE, ESQ., NEW YORK CAPITAL DEFENDER
CHARLES J. HYNES, ESQ., KINGS COUNTY DISTRICT ATTORNEY
MODERATOR:
ART C. CODY, ESQ., OSTROLENK, FABER, GERB & SOFFEN, LLP
Ms. Uelmen: This conversation is the first in a three-part series
in which we set out to explore the topic “Catholics
and the Death Penalty.” It focuses on some of the
key players in our criminal justice system: lawyers,
jurors, and in the spring we’ll talk about judges.
Before I turn the mike over to Art, who will
moderate, just a word about our hoped-for
approach for tonight’s conversation. It seems that
one of the strongest arguments for keeping
religious perspectives out of politics and also out of
the practice of law is that they tend to create
insurmountable division and misunderstanding.
Often when I’m in the midst of these debates, I find
myself thinking, “But you should see how we fight
about these issues within the same religious
community.”
I think we can all agree that tonight’s topic
is one where people within the Catholic community
have strongly held views which stretch across the
political spectrum. But our aim for this evening is
not to have a debate. Our aim is to explore how
lawyers who take the Church’s teaching seriously
have worked through the scope of its application in
their work as lawyers in the criminal justice
system. My dream, I have to confide, is that our
efforts to talk through our passionately held
positions with genuine respect, with the capacity to
listen and truly appreciate why the other may
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differ, that this may even become a hopeful model
for overcoming the polarizing and paralyzing
tensions that plague not only the Church but much
of the broader political discourse.
With that, I turn the mike over to Art Cody.
He’s an attorney at Willkie Farr & Gallagher LLP
[now with Ostrolenk, Faber, Gerb & Soffen, LLP]
and the Chairman of the Religion and Death
Penalty Subcommittee of the Association of the Bar
of the City of New York. He has been active in the
post-conviction representation of condemned
inmates in Texas and Alabama for over ten years.
He is presently defending an inmate on Alabama’s
death row. Art will introduce our distinguished
speakers and guide us through our conversation
tonight. Thank you again for coming.
Mr. Cody: Good evening. As Amy stated, my name is Art
Cody and I’ll be your moderator for this evening.
Tonight we are very fortunate to have with us two
prominent Catholic lawyers who are involved in
death penalty litigation on a weekly, if not daily,
basis. We will have the opportunity to hear the
very differing perspectives that these two Catholic
attorneys come at this issue.
To my far left, and sitting position has no
connotation on political persuasion, is Kevin M.
Doyle, the head of the Capital Defenders Office of
the State of New York. This is the organization to
which the State has given the statutory mandate of
ensuring that defendants who cannot afford
adequate representation in capital cases receive
effective representation. To his right, Charles J.
Hynes, the Kings County District Attorney, who
has the discretionary power to seek the death
penalty in Brooklyn cases where he feels it is
appropriate. Let me provide some brief
biographical data on each.
Kevin Doyle is a 1978 graduate of Fordham
University and a 1982 graduate of the University
of Virginia Law School. Upon graduation from law
school, he joined the New York Legal Aid Society’s
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Criminal Defense Division. He later worked with
the Federal Defenders Unit until becoming an
associate at a Wall Street law firm in 1988. Two
years later, in 1990, he joined the Capital Defense
Representation Resource Center in Alabama.
While in Alabama, Mr. Doyle successfully
represented capital defendants at every stage:
trial, appellate, and in post-conviction proceedings.
With the reinstatement of the death penalty in
New York,1 he was appointed the head of the
Capital Defenders Office in 1995, a position he has
held since that date. He is a frequent contributor
to leading Catholic periodicals regarding
Catholicism and the death penalty. Please
welcome Kevin Doyle.
District Attorney Charles J. Hynes was
elected the twenty-seventh District Attorney of
Kings County in 1989. He is a graduate of St.
John’s University and St. John’s University School
of Law. After graduation from law school, he
served as an associate for Legal Aid for several
years prior to joining the Kings County District
Attorney’s Office in 1969. He has served Kings
County, the City of New York, and the State of
New York in a variety of distinguished ways,
including Chief of the Racket Bureau of Kings
County, First Deputy District Attorney of Kings
County, Fire Commissioner for the City of New
York, Special State Prosecutor for Nursing Home
Fraud, Special State Prosecutor for the New York
City Criminal Justice Division, and, starting in
1989, as the District Attorney of Kings County. He
is a professor of law at, among other places,
Fordham University School of Law. Please
welcome Charles Hynes.
Prior to getting to the perspectives that Mr.
Doyle and Mr. Hynes bring to the capital
punishment issue, I would like to briefly describe
1 James Dao, Death Penalty in New York Reinstated After 18 Years, N.Y. TIMES,
Mar. 8, 1995, at A1 (discussing the signing of the new death penalty bill into law);
Beth Holland, Death Penalty Era Begins, NEWSDAY (N.Y.), Aug. 31, 1995, at A4
(discussing the new law’s taking effect on September 1, 1995).
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how this evening will run. First and foremost, as
Amy mentioned, tonight is not a debate on the
merits of the death penalty, rather it is a
discussion of how these two Catholic attorneys
came to their positions on the death penalty and
how their faith informs and influences their
practice in the capital litigation arena.
Appreciating the different perspectives that each
brings, I have prepared and provided a different
discussion question for each of them.
The sequence of tonight’s discussion will be
as follows: First, District Attorney Hynes will start
off with a twenty-minute presentation in which
he’ll respond to the discussion question that I have
provided. I will read that discussion question for
you. Mr. Doyle will then have thirty minutes to
respond to both the discussion question provided to
him by myself as well as provide his perspective on
Mr. Hynes’ remarks. Lastly, Mr. Hynes will then
have an additional ten minutes to respond to Mr.
Doyle’s perspective. I may then ask a few follow-
up questions and then open it up to the floor for
additional questions.
Regarding questions, please keep your
questions short and on the topic of tonight’s
discussion, “Catholic Lawyers and the Death
Penalty.” The lone exception to the short-question
rule is of course the discussion questions, which I
wrote. The idea was that these discussion
questions were designed to both provide a
framework for the individual panelists, yet still
allow them considerable freedom with their
remarks.
With that, I’ll start with the first discussion
question for District Attorney Hynes. Over the
past ten years, the Catholic Church has clarified
the occasions in which the death penalty is
permissible, condoning execution “if this is the only
possible way [to] effectively defend[] human lives
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2005] DEATH PENALTY PANEL DISCUSSION 301
against the unjust aggressor.”2 The Church,
however, has pointed out that such circumstances
“in which the execution of the offender is an
absolute necessity ‘are very rare, if not practically
non-existent.’”3 Pope John Paul II, particularly,
emphasized that the United States does not fall
under the rubric of this necessity exception,
challenging Americans to end the death penalty,
“which is both cruel and unnecessary.”4 The
United States Catholic Conference has also echoed
those views in its Good Friday 1999 appeal to end
the death penalty; opposing state laws that would
permit the death penalty and calling for “the
abolition of the death penalty.”5
This nation’s highest court, however, has
consistently affirmed the constitutional nature of
the death penalty, regardless of necessity.6
Likewise, the New York State Court of Appeals,
while recently finding a provision of New York’s
death penalty law unconstitutional,7 has never
2 CATECHISM OF THE CATHOLIC CHURCH ¶ 2267 (2d ed. 1997).
3 Id. (quoting JOHN PAUL II, ENCYCLICAL LETTER EVANGELIUM VITAE ¶ 56
(1995)).
4 UNITED STATES CONFERENCE OF CATHOLIC BISHOPS, A GOOD FRIDAY APPEAL
TO END THE DEATH PENALTY (1999) [hereinafter A GOOD FRIDAY APPEAL], available
at http://www.nccbuscc.org/sdwp/national/criminal/appeal.htm (quoting Pope John
Paul II, Mass in St. Louis, Mo. (Jan. 27, 1999)).
5 Id.
6 See Stephen Kanter, Confronting Capital Punishment: A Fresh Perspective on
the Constitutionality of the Death Penalty Statutes in Oregon, 36 WILLAMETTE L.
REV. 313, 351 (2000) (noting that the dissent in Furman v. Georgia, which
ultimately became the Supreme Court’s majority position on the per se
constitutionality of capital punishment, concluded that the Eighth Amendment does
not require the courts to consider the “necessity” of capital punishment); see also
Nadine Strossen, Recent U.S. and International Judicial Protection of Individual
Rights: A Comparative Legal Process Analysis and Proposed Synthesis, 41 HASTINGS
L.J. 805, 880 & n.373 (1990) (noting the Supreme Court’s refusal to apply the
necessity standard in decisions concerning the Eighth Amendment right to be free
from cruel and unusual punishment); Lawrence A. Darby III, Note, Furman v.
Georgia, 408 U.S. 238 (1972), 47 TUL. L. REV. 1167, 1177 (1973) (discussing Chief
Justice Burger’s proposition in his dissenting opinion in Furman v. Georgia that
penalties which are unnecessary to achieve penological goals are not in themselves
violative of the Eighth Amendment).
7 People v. LaValle, 3 N.Y.3d 88, 128–31, 817 N.E.2d 341, 365–67, 783 N.Y.S.2d
485, 509–11 (2004) (holding that a statutorily mandated deadlock instruction—
requiring the court to instruct the jury in capital sentencing that failure by the jury
to reach a unanimous verdict on either a death sentence or life without parole would
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found capital punishment to be per se cruel and
unusual.8 In light of the recent New York State
Court of Appeals ruling, numerous state
representatives have called for immediate
legislative measures to return capital punishment
to New York. As Senate Majority Joseph Bruno
stated, “We will fix whatever we have to fix.”9
Governor Pataki has joined this call for
reinstatement and had frequently called for
expansion of the now-invalidated death penalty
statute.10
result in a life sentence with eligibility for parole after twenty to twenty-five years—
created an impermissible risk of arbitrary sentencing based on speculation, and
therefore violated the New York State Constitution’s due process clause).
8 See, e.g., People v. Smith, 63 N.Y.2d 41, 78, 468 N.E.2d 879, 898, 479 N.Y.S.2d
706, 725 (1984) (invalidating the imposition of the mandatory death sentence due to
its failure to provide for the consideration of individual circumstances); People v.
Davis, 43 N.Y.2d 17, 36–37, 371 N.E.2d 456, 466, 400 N.Y.S.2d 735, 746 (1977)
(holding the death penalty statute unconstitutional due to the lack of a provision for
the “consideration of relevant and particularized mitigating factors”); People v.
Fitzpatrick, 32 N.Y.2d 499, 512–13, 300 N.E.2d 139, 145–46, 346 N.Y.S.2d 793, 802
(1973) (overturning the death penalty statute as unconstitutional because it left the
imposition of the death penalty solely to the discretion of the jury); see also Anthony
J. Casey, Maintaining the Integrity of Death: An Argument for Restricting a
Defendant’s Right to Volunteer for Execution at Certain Stages in Capital
Proceedings, 30 AM. J. CRIM. L. 75, 92 n.119 (2002). See generally Michael Lumer &
Nancy Tenney, The Death Penalty in New York: An Historical Perspective, 4 J.L. &
POL’Y 81, 83–97 (1995) (describing the statutory evolution and jurisprudential
history of New York’s death penalty).
9 Joel Stashenko, Lawmakers Vow to Fix Death Penalty, TIMES UNION (Albany),
July 12, 2004, at B3.
10 Governor Pataki recently called for a reinstatement of the death penalty in
his State of the State address. Errol A. Cockfield Jr., Pataki Focuses on His Legacy,
NEWSDAY (N.Y.), Jan. 6, 2005, at A16. Prior to the death penalty being overturned,
he sought its expansion on at least three occasions. First, in his 1998 State of the
State address, Governor Pataki proposed to “expand[] . . . the death penalty law to
allow juries to hear impact statements by victims’ families and to expose a convict’s
complete criminal history during the trial’s sentencing phase.” Editorial, Pataki’s
Dollars and Sense, DAILY NEWS (N.Y.), Jan. 8, 1998, at 38; see also Editorial,
Dueling Campaign Speeches, N.Y. TIMES, Jan. 8, 1998, at A26. Second, in 1999,
Governor Pataki sought to “expand the types of intentional murders for which the
death penalty could be imposed.” James M. Odato, Abortion Access Bill Approved,
TIMES UNION (Albany), June 18, 1999, at A1 (explaining that the death penalty
provision was attached to an abortion-clinic access measure). Third, in the wake of
the terrorism attacks on the World Trade Center in New York in 2001, Governor
Pataki sponsored legislation that “broaden[ed] the [S]tate’s death penalty law to
specifically include acts of terrorism.” Tom Precious, State Lawmakers Quickly Pass
Anti-Terrorism Laws in Wake of Attacks, BUFFALO NEWS (N.Y.), Sept. 18, 2001, at
A8; see also Elizabeth Benjamin, Out of the Heart of Darkness: Following the Attacks
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Now the discussion questions—A district
attorney is sworn to uphold and enforce the law
and is answerable to higher governmental leaders
to do just that. Question one: have the reflections
of the Catholic Church on the death penalty
influenced your approach to enforcing the death
penalty? If so, how? The second part of the
question: do you perceive any conflict or tension
between your Catholicism and your role as a
prosecutor who has the discretion, and in fact can
be compelled, to seek the death penalty? If so, how
do you navigate your way through this conflict?
Mr. Hynes: Thank you. Well, listening to Amy and her
allusion to treading on the dangerous waters of
politics and other controversial subjects, it reminds
me of my Aunt Minnie, who refused to allow
discussions of politics or religion at her dining
room table in Dorchester, Massachusetts. She
would be happy tonight with me. I’m not sure
everybody else is going to be so happy because the
answer to the first question is I’m not at all
influenced by the Church’s position. I’m not sure
that it is as clear as it ought to be. It has certainly
never spoken ex cathedra on the issue. So it has
not influenced my position on supporting the death
penalty where I have to. I don’t have to answer to
any other higher authority than the people of
Kings County, and as long as 51% retain me, I’ll be
there until I die or they throw me out.
The second part of the question is, while I
have discretion I have to apply the discretion
orderly. I cannot be compelled, as the question
indicates. No one can compel me to seek the death
penalty. I can be removed, but it’s not forcing me
to impose the death penalty or seek the death
penalty. We’ve had but one district attorney
removed since the restoration. That was Bob
on the World Trade Center, the New York Legislature Lost No Time Passing Disaster
Aid and Anti-Terrorism Bills, ST. LEGISLATURES, Dec. 1, 2001, at 13; John Caher,
State Legislature Approves Tough Anti-Terrorism Laws, N.Y. L.J., Sept. 18, 2001, at
1.
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Johnson in The Bronx.11 I was President of the
State D.A.’s Association. I urged the Governor not
to do it. I told him that I believed that Johnson’s
position that he would keep the door open was an
honest one and his being removed was wrong. It
turns out that the judicial review was on the side
of Governor Pataki.12
My documented public opposition to the
death penalty goes back for more than a quarter of
a century. I first spoke to the issue in 1978, when I
unsuccessfully sought the nomination for the
Democratic Party for State Attorney General. At
the party’s convention in Albany, only two
candidates were endorsed: Robert Abrams of
Manhattan, who was later elected Attorney
General, and Justice Dolores Denman of Buffalo.
Neither I nor Nicholas Scoppetta, who is currently
the New York City Fire Commissioner, received
sufficient votes of the convention delegates to
qualify for the primary.
Throughout my pre-convention campaign, I
repeatedly stated my opposition to the death
penalty, as did Robert Abrams. After Judge
Denman was co-nominated at the last minute by
party leaders who were trying to deprive Bob
Abrams of a primary victory, I met with Judge
Denman at her request. Since she had
considerably more experience as a lawyer than Bob
Abrams, I was inclined to support her, but I had
one question: what was her position on the death
penalty? As a last-minute candidate, she had not
stated any views on that subject, amongst other
11 See Jonathan DeMay, Note, A District Attorney’s Decision Whether to Seek the
Death Penalty: Toward an Improved Process, 26 FORDHAM URB. L.J. 767, 767–69,
768 n.9, 769 n.10 (1999); see also Johnson v. Pataki, 91 N.Y.2d 214, 223–24, 691
N.E.2d 1002, 1005–06, 668 N.Y.S.2d 978, 981–82 (1997) (holding that the Governor
had discretionary authority to supersede the district attorney in a particular matter,
and that the Governor’s use of discretion in this instance was valid).
12 Johnson, 91 N.Y.2d at 220, 691 N.E.2d at 1003, 668 N.Y.S.2d at 979 (1997)
(“We hold that the Governor acted lawfully under constitutional and statutory
authority, and that even if the rationale for his action were subject to judicial review
the superseder order here would be valid.”); see also DeMay, supra note 11, at 768–
69 (discussing the circumstances surrounding Johnson v. Pataki).
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subjects. When she told me she was a strong
supporter of legislation to restore the death
penalty, I told her I could not support her.
She asked me if my position was grounded
in my Catholicism. Before I could answer, she said
that she was also a Catholic, and did I know that
the Catholic Church was not, at the time, a strong
opponent of the death penalty? I replied that I
didn’t know that, nor did it in any way influence
my decision. It did not then; it does not now,
however evolving the Catholic position seems to be.
I told Justice Denman what I’ll tell you this
evening: my opposition to the State’s policy of life
termination in murder cases is not theological; it’s
pragmatic.
By the time I met with Judge Denman in
1978, for fifteen years I had practiced on both sides
of the well—as a defense lawyer and as a
prosecutor. That experience told me the following:
the death penalty is not a deterrent to those who
would consider taking the life of another, which
was the prevailing myth in the 1970s. Moreover, I
concluded that the death penalty is not an
appropriate expression of society’s outrage, which
is another flawed position of those who would
restore the death penalty. My position then, as it
is today, is that life imprisonment without the
possibility of parole is a much more punishing
expression of society’s outrage.
Another objection was, and is, that the risk
of executing the innocent is a fact that has
produced a shocking history of injustice in many
parts of this country. In addition, it most often has
affected economically deprived members of our
society, and frequently those who are victims of
discrimination.13 And finally, the resources needed
for the State to execute can run into the millions of
13 See IRA J. SILVERMAN & MANUEL VEGA, CORRECTIONS: A COMPREHENSIVE
VIEW 31–33 (1996) (noting that race and economics have an influence on the
likelihood of a defendant being charged with capital murder or receiving the death
penalty).
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dollars for just one death penalty case and take as
many as fifteen to twenty years before the sentence
is carried out which, incidentally, is another reason
why the penalty does not deter.14 By contrast, life
imprisonment without the possibility of parole,
given the life expectancy rates in prison, requires
significantly less resources.15
This evening, with more than four decades
of experience as a criminal lawyer, nothing about
these objections I hold has changed. What has
changed is the law, and the law changed because
the public was deceived. They were told by the
man challenging Mario Cuomo in 1994 that the re-
imposition of the death penalty would reduce
murder rates in New York State and would even
reduce violent crime.16 But the facts were that by
1994, during that state-wide race, murder rates
and other violent crime rates had plummeted.17
Nonetheless, it was the often-repeated theme of
George Pataki—another Catholic and in other
respects a decent and sincere public official, I
suppose.
What troubled me during that race for
governor in 1994 is that everyone in this state who
had any interest or cared about the death penalty
knew very well that if Mario Cuomo was defeated
by George Pataki, one of the first acts that Pataki
would make was to restore the death penalty. As a
matter of fact, as far back as—and by the way,
14 See generally Richard C. Dieter, Executive Dir., Death Penalty Info. Ctr.,
Costs of the Death Penalty and Related Issues, Address Before the New York State
Assembly Standing Committees on Codes, Judiciary, and Correction (Jan. 25, 2005)
(transcript available at http://www.deathpenaltyinfo.org/NY-RCD-Test.pdf)
(discussing the economic and societal costs of the death penalty).
15 See SILVERMAN & VEGA, supra note 13, at 34 (explaining that it costs much
more “on average, to try, convict, and execute a murderer when compared with the
cost of a life prison term”).
16 See The 1994 Campaign; Pataki on the Record: Excerpts From a Talk on
Campaign Issues, N.Y. TIMES, Oct. 10, 1994, at B4 (publishing excerpts from a press
conference where Pataki explained why he believed the imposition of death penalty
would be a deterrent to future crime).
17 See Disaster Ctr., New York Crime Rates 1960–2000,
http://www.disastercenter.com/crime/nycrime.htm (last visited Oct. 21, 2005)
(showing a decrease in New York’s crime rate in 1994 from prior years).
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what I couldn’t understand was that voices heard
today all over the state were strangely silent as far
back as 1998—there was no one asking for a repeal
of the death penalty, there was no consensus to
repeal the death penalty, and so it was left for the
New York State Court of Appeals to judicially
repeal the law, as it did recently.18 The obvious
question for me to address is: given the opposition I
have to the death penalty, why have I sought the
penalty eleven times of the ninety-five cases which
were statutorily eligible for execution by lethal
injection? Quite simply, that decision is based
solely on what I believe is my obligation under this
State’s constitution to follow the law passed by the
legislature and enacted by the governor’s
signature.
In order to eliminate any possibility of
mistake in seeking the death penalty, I created a
panel of experienced trial lawyers. The panel is
not only multiracial, it is multi-gendered, and has
an average of fifteen years’ trial experience. All
potential capital murder cases are assigned at the
discovery of a body to a senior deputy and a senior
trial assistant in the Homicide Division.
When a defendant has been apprehended, a
comprehensive investigation is then conducted by a
team working with homicide detectives. The team
makes a recommendation to the chief of the
Homicide Division recommending a sentence of life
without parole or death. The homicide chief will
either pass on that recommendation to the panel or
notify the panel with reasons why it rejects it. The
panel will often question members of the team
about the details of the investigation and will
review mitigation offered by the defense. Within
125 days from the arraignment on the indictment
for murder in the first degree the panel must make
18 People v. LaValle, 3 N.Y.3d 88, 128–31, 817 N.E.2d 341, 365–67, 783
N.Y.S.2d 485, 509–11 (2004) (holding that the State’s jury instructions were
unconstitutional under the state constitution and that the constitutional defect in
the existing statute could only be cured by passage of a new law by the legislature).
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its recommendation to me, and I have an obligation
to notify the court and the defendant at that time.
What I’ll share with you this evening is
something I have never publicly revealed, and that
is the reason why I have chosen these eleven
defendants for the death penalty. In every single
case it involved a vile example of murders not
merely containing the requisite degree of
premeditation—which existed in the other eighty-
four death-eligible cases—but murders which did
not consider for a moment the mercy asked and
pleaded for by the victims; murders which,
according to my minimal research, fit the Holy
Father’s 1995 Encyclical, The Gospel of Life, which
I’ll paraphrase: the execution of offenders as an
absolute necessity must be very rare.19 Note: not
abolition, rare.20 I’ll close with the facts of three of
these cases, but I assure you that the other eight
amply fit this rare exception.
The case of Michael Shane Hale: The
defendant decided to kill his lover after being
thrown out of the apartment that was owned by
the lover. Hale waited in the garage for his lover
to enter his automobile. Hale, using a judo move,
slammed the victim to the concrete floor and then
with a wooden plank repeatedly hit him over the
head until he thought he was dead. He then put
the victim in the trunk and drove aimlessly for
awhile. He was startled when he heard the
moaning from the trunk. When he approached the
trunk, he heard the victim cry out, “Michael, please
help me.” Hale threw open the trunk, put a plastic
bag over the victim’s face and head, and held it
until the victim expired. Finally, Hale took the
body to Kentucky, where he dismembered it and
disposed of it. He was permitted to plead guilty to
three separate felonies: murder in the second
degree, kidnapping in the second degree, and
robbery in the first degree. All three of those
19 JOHN PAUL II, ENCYCLICAL LETTER EVANGELIUM VITAE ¶ 56 (1995)
[hereinafter EVANGELIUM VITAE].
20 Id.
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sentences ran concurrently. He is now doing fifty
years to life.
In the case of Darrel Harris, who was
convicted of murder in the first degree and
sentenced to death, Harris shot to death two
patrons of an after-hours club. When a mother of
five tried to escape, Harris chased her. She
dropped to her knees and pleaded, “I have five
children. For God’s sake don’t do this.” Harris had
run out of bullets, so he took a knife out and
stabbed her to death. The Court of Appeals set
aside the death penalty and Harris was sentenced
to life without parole.21
In the third case, a defendant named Jerry
Bonton set out to rob people who he believed were
Jamaican drug dealers. It turned out they weren’t
drug dealers at all. When he barged into their
apartments, he demanded money, and they refused
to give it to him, simply because they didn’t have
it. He shot and killed one of the victims. The
second victim pleaded for his life, but Bonton shot
and killed him as well. Bonton is serving life
without parole.
Of the four remaining cases, which are
closed, two defendants are serving life without
parole, a third is doing sixty-five years to life, and
a fourth is doing seventy-five years to life. Four
cases are pending, with no likelihood of remaining
as death cases because of the recent ruling of the
Court of Appeals.22
Finally, if there should be public hearings
on the restoration of the death penalty—and let me
caution you, there were no public hearings the last
time it was restored—but if there are public
hearings in either house of the state legislature,
21 People v. Harris, 98 N.Y.2d 452, 496, 779 N.E.2d 705, 728, 749 N.Y.S.2d 766,
789 (2002) (vacating defendant’s death sentence and remitting the case for
resentencing).
22 See, e.g., Lavalle, 3 N.Y.3d at 128–31, 817 N.E.2d at 365–67, 783 N.Y.S.2d at
509–11 (invalidating the death penalty).
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and my opinion is permitted, I’ll urge that the
death penalty not be restored, for the reasons I
gave you. But, also for the reasons I stated, if the
death penalty returns, I’ll follow the law where it’s
appropriate.
Thank you.
Mr. Cody: Thank you, District Attorney Hynes. Kevin Doyle
will now have thirty minutes to respond to the
following question, which I will read, as well as to
respond to District Attorney Hynes’ remarks. The
question for Capital Defender Kevin M. Doyle: The
statutory mandate of the organization you head,
the Capital Defender Office, is to ensure that
defendants who cannot afford adequate
representation in capital cases receive effective
assistance of counsel. Accordingly, this state-
established agency has consistently maintained
that it functions as a Sixth Amendment right-to-
counsel office and not as a politically active
abolition advocate or moral-ethical think-tank.
In your personal capacity, however, you
have often spoken and written about your Catholic
faith and its influence upon your work in the
capital punishment arena.23 You have either
authored or been the subject of articles in a variety
of Catholic media, including U.S. Catholic,
Commonweal, America, and First Things.24 In
each of these articles, you emphasize the influence
of your Catholicism upon your views and your work
23 See, e.g., Avery Cardinal Dulles and His Critics: An Exchange on Capital
Punishment, FIRST THINGS, Aug./Sept. 2001, at 7, 11–12 [hereinafter Cardinal
Dulles and His Critics] (containing a contribution to the column by Kevin Doyle);
Kevin Doyle, Let’s Stick Up for Our Imperfect Church, U.S. CATH., Mar. 1, 2001, at
36 [hereinafter Doyle, Imperfect Church]; Kevin Doyle, No Defense; Argument
Against the Death Penalty, U.S. CATH., Aug. 1, 1999, at 18 [hereinafter Doyle, No
Defense]; Kevin Doyle, Who Lives in the Vatican? The Laity, COMMONWEAL, Sept. 11,
1992, at 22 [hereinafter Doyle, Who Lives in the Vatican?].
24 See George M. Anderson, Capital Punishment in Perspective: An Interview
with Kevin Doyle, AMERICA, Apr. 20, 1996, at 16; Cardinal Dulles and His Critics,
supra note 23, at 11–12; Doyle, Imperfect Church, supra note 23, at 36; Doyle, No
Defense, supra note 23, at 18; Doyle, Who Lives in the Vatican?, supra note 23, at 22;
see also Editorial, The Innocence Protection Act, AMERICA, Sept. 23, 2002, at 3.
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as an advocate.25 In fact, in the [August 1999]
issue of U.S. Catholic you stated, “When asked to
explain why I oppose the death penalty, I cannot
help but answer as a Roman Catholic.”26
Discussion questions: Can you explain the
effect of your Catholic faith upon your opposition to
the death penalty and your work as a capital
defender? How does it inform your work? And are
there any times or ways in which your Catholicism
conflicts or has conflicted with your work,
particularly given that it is your duty as an
advocate to obtain the best result for a defendant
regardless of substantive law and justice concerns?
Mr. Doyle—
Mr. Doyle: Ouch! It’s a pleasure to be here at Fordham. I
didn’t get my law degree here, but, owing to three
alumni, I feel great indebtedness to this
institution. Tom Concannon, who is the head of
the Federal Defenders Office in the Eastern
District and one of the finest lawyers I know, did
his best to try to teach me to put a little bit of
compassion and cunning in all my advocacy. Rob
Aiello, is a more recent graduate. I had the
pleasure of working with him on a case up in
Westchester not too long ago, a trial case that came
to a successful end. And then there is the matter
of my younger brother, who frankly, for most of my
life, I had sort of thought I’d have to support him
into his old age. Lo and behold, he came here, they
dusted him off, made him a respectable citizen, he
25 See Anderson, supra note 24, at 16 (discussing how throughout his career he
has advocated on behalf of defendants against the death penalty and the moral
implications of capital punishment); Cardinal Dulles and His Critics, supra note 23,
at 11–12 (arguing that Avery Cardinal Dulles goes against the Church’s teachings in
finding the death penalty acceptable for purposes of punishment other than
incapacitation); Doyle, Imperfect Church, supra note 23, at 36 (describing the
importance of the Church in people’s lives); Doyle, No Defense, supra note 23, at 36
(arguing as a Catholic against the death penalty); Doyle, Who Lives in the Vatican,
supra note 23, at 22 (discussing the decline in Catholic identity); The Innocence
Protection Act, supra note 24, at 3 (discussing flaws within the criminal justice
system, in which there have been a number of cases where the wrong person was
charged).
26 Doyle, No Defense, supra note 23, at 18.
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got on Law Review, and now he’s someone from
whom I can borrow money. So I thank Fordham
for that.
Frankly, it would be hard to exaggerate the
degree to which my opposition to the death penalty
springs from my Catholicism. It probably springs
from my Catholicism in more ways than I know,
certainly since the late 1980s when I began doing
capital work and at that time my initiation was
through a pro bono case when I was on Wall Street.
Since that time, every year I have discovered more
deeply how much Catholic truths and my Catholic
sensibilities come into play and are reinforced by
doing capital work.
I would, though, just to simplify, say that
there are basically three Catholic truths that
underlie my convictions about the death penalty. I
should emphasize when I say opposition to the
death penalty, I don’t mean that in an absolute
way. I think that there have been times in history,
and there may even be places in the world today,
where execution is not only morally permissible
but would be a duty. I think if we cannot
incapacitate the killer through imprisonment, if
we’re in such a situation, that it may indeed be our
obligation to put him to death. So when I talk
about opposition to the death penalty, I mean
opposition when we have the alternative of life
without parole.
The three Catholic truths that set me
against the death penalty under those
circumstances—the first is that human beings are
complex and they’re prone to err. I grew up in a
devoutly Catholic family, but not a simplistically
Catholic family or a blindly Catholic family. When
I say it wasn’t simplistically Catholic, I don’t mean
that we sat around sipping sherry and dissecting
Karl Rahner and Jacques Maritain. I do mean
that in our house it was well understood that the
world does not divide into saints and sinners, the
damned and the saved, that things are not black
and white. It was well understood that sin and
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salvation are ever lurking in every life and that the
line between good and evil doesn’t separate nations
or groups or individuals, but rather runs through
the human heart.
When you have that sensibility—and I
would suggest that it’s a deeply Catholic one—
when you have that, it’s a humbling thing. And,
much quicker than leading you to a damning
judgment, it would create difficulty if you were to
be called upon to determine which murderer could
be granted the mercy of life without possibility of
parole and which murderer must die. It’s a
sensibility that really reflexively causes you to say
“there but for the grace of God,” rather than
“vengeance is mine.” So there is that.
And we were not brought up blindly
Catholic. By that I mean simply this, that we were
all imbued with a great love for the Church but we
all understood its more colorful historical episodes.
There was no sugar coating. We knew about
Crusades, inquisitions, indulgence abuses, and all
that. And if you believe, as we did and I do, that
the Church is the best expression, not the perfect
expression, but the best expression of Christ’s
truth, if you believe that on the one hand, and on
the other hand are intellectually honest enough to
own up to its scandals and its missteps throughout
history and even today, if you have that view of
things, well then, naturally, you’re going to have a
very healthy skepticism when you view secular
institutions—institutions that were not founded by
Jesus, institutions that are not guaranteed
protection by the Holy Spirit.
Thus, I have a pretty clear-eyed view of our
criminal justice system. As much as I commend its
aspirations and try to contribute to it being as just
as possible, I’d be foolish not to acknowledge its
profound fallibility, and I’d be foolish not to look
just at the statistics regarding the death penalty in
this country over the past few decades. Since 1973,
roughly 7500—and I’m saying “roughly” because I
have had to do a little projection and cobbling
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together Justice Department statistics—but
roughly 7500 people have been sent to death row.27
During that period, over 100 were released in the
wake of evidence either clearly establishing or
strongly pointing to their innocence.28 That is a
frightening rate of error. Frankly, if I could do
math, I would have been a doctor, not a lawyer, but
it does come to more than 1%. I know that much.
I also know that these exonerations very,
very often were really by chance. I mean just one
experience from when I was in Alabama—we
represented in our office, particularly Bryan
Stevenson and Michael O’Connor, a man named
Walter McMillan who had been on death row in
Alabama for eight years, owing in part because
they put him there pre-trial. He was African-
American, a middle-aged man. He was there for
killing a pretty young white clerk at a dry cleaners.
He had a sentence of death. Fortunately, he had
Bryan and Michael as his attorneys.
As they got underway in their post-
conviction investigation, they were given by a
sloppy sheriff the whole case file—the raw,
disorganized case file, a box or two. And there was
a cassette in there. The cassette had the statement
of the main witness against Mr. McMillan. They
plucked it into the tape recorder, they listened to
it, and then the statement is finished, right?
Then one of them thinks, “I wonder what’s
on the other side of the cassette.” Thankfully, the
sheriff never checked this before the file was
turned over. Well, they flipped it over and they
found that on the other side was this witness
complaining bitterly about why the sheriff was
forcing him to frame Walter McMillan. That’s a
27 See THOMAS P. BONCZAR & TRACY L. SNELL, BUREAU OF JUST. STAT, CAPITAL
PUNISHMENT, 2003, at 14 (2004), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/
cp03.pdf (stating that 7403 people were sentenced to death between 1973 and 2003).
28 See Leonard Post, ABA Death Penalty Guidelines Languish, NAT’L L.J., Jan.
5, 2004, at 4 (“Since 1973, 112 people in [twenty-five] states have been released from
death row because of evidence of their innocence.”).
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shocking thing, and it’s absolutely unembellished
truth what I just told you. That’s a shocking thing.
You know, it’s remarkable in this country.
If a plane crashes, there is a major reconstruction
undertaken, a major investigation, a major inquiry,
with formal findings, right? And yet these kinds of
mistakes, it barely caused a pause in the capital
justice system in Alabama. I mean think about it.
If you had the capital justice error rate, if you went
to the FAA and you said, “You know, I’m not
certified as an aviation engineer, but I like to
doodle, and I put together this little aircraft and I’d
like you to certify it for flight and oh, but by the
way, on every hundredth landing it almost
crashes”—they’d laugh you out.
If you went to the Food and Drug
Administration and said, “I’m not a chemist but I
like to fool around with substances in my garage
and I’ve come up with this little nifty concoction.
Now, it has no proven benefits, it has a completely
unpredictable effect on 12% of the people who take
it, and by the way, there is near fatality on every
hundredth dosage”—they would laugh at you,
right?
If you went to the Federal Election
Commission—well, forget that one. You see the
point, right? How can we tolerate this? Well, I’m
afraid part of the answer is that the people who are
in the risk pool tend to be lighter in wallet and
darker in complexion than the folks who most often
fly airplanes or take prescription medications. The
people who are subject to these mistakes are
overwhelmingly, as District Attorney Hynes
pointed out, deprived and they tend to be in racial
minorities.
This brings me to the second Catholic truth
which sets me against the death penalty, and that
is the belief that racism is mortally sinful. Now,
partly owing to when I was born and how my
parents raised me, I have a particularly strong
sense of this in how my parents raised me. They
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named me after Martin de Porres. I grew up
during the civil rights movement, so this was
pressed upon me. But the notion that racism is
sinful is not some liberal Catholic figment of
imagination, right? I mean this really is built into
the claims of Catholicism to its claims of
universality and its whole view of humanity.
When you look at our death penalty, you
realize that it has always been riddled with racism.
I mean in the slave codes, in the lynchings, the
thousands and thousands and thousands of
lynchings that took place in this country just
between like 1882 and 1968.29 And today it
persists. There is virtually no death row in the
country where racial minorities are not wildly
over-represented.30 And it’s not just in terms of the
race of the defendant; it’s also in the race of the
victim. When I was in Alabama, over 80% of the
folks on death row were there for killing white
folks, and yet the majority of homicide victims, the
majority of murder victims, in Alabama are
black.31
A more refined look was taken by David
Baldus, a law professor, who studied Georgia, who
found that a defendant on trial for killing a white
29 See FRANKLIN E. ZIMRING, THE CONTRADICTIONS OF AMERICAN CAPITAL
PUNISHMENT 90 (2003) (“The archives at Tuskegee Institute report a total of 4743
deaths by lynching in the United States during the period 1882 to 1968.”).
30 See William J. Bowers et al., The Capital Sentencing Decision: Guided
Discretion, Reasoned Moral Judgment, or Legal Fiction, in AMERICA’S EXPERIMENT
WITH CAPITAL PUNISHMENT 413, 463 (James R. Acker et al. eds., 2nd ed. 2003)
(“Accusations and evidence of racism have stalked capital punishment in America
since colonial times. The use of the death penalty since Furman has been racked
with disparities by race of defendant and victim . . . .”). But see STUART BANNER, THE
DEATH PENALTY 289 (2002) (finding that although before Furman “black defendants
were sentenced to death at higher rates than white defendants” later econometric
studies revealed that “[i]n some states the race of a defendant was no longer a factor
influencing the likelihood of a death sentence”). See generally SOURCEBOOK OF
CRIMINAL JUSTICE STATISTICS 2003, at 535 tbl.6.80, available at
http://www.albany.edu/sourcebook/pdf/t680.pdf (last visited Oct. 21, 2005) (providing
statistics of the race of the defendants sentenced to death in each state).
31 See Carter Center Symposium on the Death Penalty, 14 GA. ST. U. L. REV. 329,
372 (1998) (“Although 67% of all murder victims in the State of Alabama are black,
84% of all people who have been sentenced to death in that state have been
sentenced to death for crimes committed against people who are white.”).
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victim was roughly four times more likely to get a
death sentence than someone on trial for killing a
black victim or a non-white victim.32 That’s
Georgia.
But don’t make any mistake. It’s not just
the South. There was a Cornell Law Review
[article] in 1998 that published a study that was
done out of Philadelphia.33 They found that a
person who was on trial, a capital defendant on
trial, who was non-white compared to a similarly
situated—and with as bad a crime as a—white
person, was over three times as likely to draw a
death sentence.34 I mean that’s striking. That
alone should stop us in our tracks. And
particularly if we understand how this racism is
not just malicious. Sometimes it’s malicious,
sometimes it’s deliberate, sometimes it’s cynical,
sometimes it’s intentional, but it’s also in some
ways, and I’m reluctant to use this word for so
horrible a thing as racism, but sometimes it’s sort
of innocent.
I mean this: there is built into a penalty
phase a basic dynamic of empathy. That is, if the
defense is doing it right. Let me be clearer. For a
defense attorney to succeed in a penalty phase, for
a defense attorney to convince a jury that this
person doesn’t have to be executed but they can
simply be put away for the rest of their life without
parole, typically to bring about that result means
that just for a nanosecond that the jury looks at
32 See Alex Lesman, State Responses to the Specter of Racial Discrimination in
Capital Proceedings: The Kentucky Racial Justice Act and the New Jersey Supreme
Court’s Proportionality Review Project, 13 J.L. & POL’Y 359, 369 (2005) (“Baldus
concluded that Georgia defendants who killed whites were 4.3 times more likely to
receive a death sentence than defendants who killed blacks.”).
33 David C. Baldus et al., Racial Discrimination and the Death Penalty in the
Post-Furman Era: An Empirical and Legal Overview, with Recent Findings from
Philadelphia, 83 CORNELL L. REV. 1638, 1662 (1998).
34 See id. at 1726 (finding that after comparing the “odds of a death sentence for
black defendants to the odds faced by similarly situated nonblack defendants . . . on
average, black defendants in Philadelphia face odds of receiving a death sentence in
a penalty trial that are 9.3 times higher than the odds faced by nonblack defendants
with comparable levels of culpability”).
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the person and says “there but for the grace of God
go I,” that there’s something in them that they can
identify with.
Race is just a barrier to that. That may be
the human condition, it may be the American
condition in 2004, it may be the world condition in
2004, maybe it goes to Original Sin. I don’t know.
But it is the truth. In fact, it’s one of the few
things Justice Scalia and I agree on. In some
memoranda that were released through Justice
Marshall’s papers, there was found the concession
that “ ‘[t]he unconscious operation[s] of irrational
sympathies and antipathies, including racial, upon
jury decisions and (hence) prosecutorial decisions
is real, acknowledged in [] decisions of this Court,
and ineradicable.’ ”35 So there’s the problem of
racism.
And then, the third Catholic truth that puts
me in opposition to the death penalty is the simple
belief that all human life, every individual human
life, is a sacred thing. I think, as much as you can
criticize the Church’s handling of this issue or that
issue or whatever, I have no doubt that in a
century that people will look back and see the
great prophetic voice of the Church on behalf of the
sanctity of human life.
I mean it is frightening. If you step back
and examine how casual we are now about the
sanctity of human life, it’s amazing. The fact that
assisted suicide is spoken about so much more than
guaranteeing good hospice care. The fact that
assisted suicide—that suicide’s advocates of it are
so sloppy. There was a column in The New York
Times by one of its regular columnists, who
ordinarily makes a lot of sense, advocating assisted
suicide for a fellow who had just received a cancer
diagnosis. I happen to know about this cancer
35 BANNER, supra note 30, at 290 (quoting Memorandum from Antonin Scalia,
Associate Justice, United States Supreme Court, to the Conference of Supreme
Court Justices (Jan. 6, 1987)) (unpublished document, on file with Thurgood
Marshall Papers, Manuscript Division, Library of Congress, Box 425).
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because of some family history. This guy didn’t
need assistance in his suicide; he needed a
psychiatrist and a new oncologist. The New York
Times, for sure, heard about its gaffe but
unfortunately failed even to print any corrections
or clarifications.
Assisted suicide is something that even now
is seeping into our entertainment. I rented a DVD
to watch with my kids. Frankly, it was about an
Irish outlaw in the Australian outback. I sort of
knew, frankly, there were going to be parts I was
going to have to fast-forward through because—
that’s why God made remote controls. I didn’t
expect there to be two separate episodes in this
movie that were basically little infomercials for
assisted suicide. I swear. The name of the movie
is “Ned Kelly.”
So the way we talk about assisted suicide—
the way we discussed war in Iraq. Now, let me
emphasize I’m not talking about whether we made
the right decision or the wrong decision, whether
the results are good or the results are bad. I’m not
talking about any of that. I’m saying that the way
we discuss that certainly says a lot about our views
regarding the sanctity of human life. Think about
how citizens—they weren’t misinformed, they
voluntarily misinformed themselves about links
between Saddam Hussein and the tragedy of the
World Trade Center. Even when they weren’t
being told that there were links between the two, a
huge number of Americans thought that because
they didn’t bother to do their homework before
making a decision about what we should be doing.
Think about how nonplussed people were about the
shift in justifications for the war. And again,
maybe some of those justifications were well taken.
That’s not my point.
Think about when the Pope had the
audacity to say, “Wait a minute, preemptive war,
going against Iraq, that’s wrong, we shouldn’t do
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it.”36 Bill O’Reilly—who for better or worse is one
of our most watched political commentators—he
takes to his pulpit and starts attacking the Vatican
with this old nonsense, this revisionist crap, about
Pius XII being soft on the Nazis and having turned
his back on our Jewish brothers and sisters.37 But
that was the level of discourse before we launched
a war!
Most importantly—and I’m sure I will
displease some of you by bringing this up—if you
want to look at how devalued our attitudes are
about the sanctity of human life, look at how we
discuss abortion. Now, we don’t have to agree on
what greater legal protections the unborn should
have or what strategies are appropriate or where
lines are drawn or anything like that. But just
look at how we discuss it.
I was at Rose Hill as a philosophy major in
the 1970s. It was a great department and they
made us read a very broad range of philosophers.
But naturally, it was a Jesuit university and they
were very insistent that we spend time on Natural
Law theory. At the time, one of the great Natural
Law theorists was a guy, really the ethics star of
Princeton University then, a guy named Paul
Ramsey. I think he was Methodist. Very, very
smart man, very wise man. He framed the
abortion issue not dogmatically, not in some
unreasonable “we can’t discuss this” fashion. He
framed it this way: he said, if you’re going to justify
abortion at any particular gestational stage, if
you’re going to do that, then just be able to morally
36 See, e.g., Elisabeth Bumiller, Peace Envoy from Vatican in U.S. for Talks with
Bush, N.Y. TIMES, Mar. 4, 2003, at A12 (chronicling Pope John Paul II’s peace
diplomacy and calling him “a worldwide moral voice against a potential war against”
Iraq).
37 See, e.g., JOHN CORNWELL, HITLER’S POPE: THE SECRET HISTORY OF PIUS XII,
at 4–7 (1999) (depicting the “fatal and culpable influence” of Pope Pius XII and his
purported partnership with Hitler).
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distinguish it from infanticide.38 I think that
makes a lot of sense, that approach.
Now fast-forward to today. Now the
philosophy star at Princeton is not Paul Ramsey
any longer, it’s a man named Peter Singer. Peter
Singer’s view—forget abortion—his view is that
parents should have a period of days after birth in
which to determine whether or not the infant is up
to snuff; and if the infant is not up to snuff, the
infant may be snuffed.39 That’s a remarkable and
frightening shift.
Therefore, I think it was extremely wise for
the Church to reinforce and rethink and press on
the importance of giving witness to the sanctity of
human life when it came even to convicted
murderers. Now, conservative Catholics will say,
“Well, you know, a convicted murderer is not an
innocent unborn child, a convicted murderer is not
a terminally ill patient,” and of course that’s all
true. And yet, the Holy Father was wise and bold
and clear when in his Encyclical of 1995, The
Gospel of Life, he included euthanasia and abortion
and the death penalty all in the same chapter,
Chapter three.40
So those are the three Catholic truths that
bring me to oppose the death penalty and to some
extent fuel my convictions. As to how my
Catholicism informs my work, I’ll tell you very
mundanely that my office runs heavily on a
principle of subsidiarity. That is to say that there’s
not unnecessary centralizing of decision-making. I
mean, frankly, I don’t know that there’s another
way to run a trial office. We have a tremendous
38 See PAUL RAMSEY, ETHICS AT THE EDGES OF LIFE 190 (1978) (encapsulating
his “logical reasoning that many arguments favoring abortion would also justify
infanticide”).
39 See HELGA KUHSE & PETER SINGER, SHOULD THE BABY LIVE: THE PROBLEM
OF HANDICAPPED INFANTS? 132–37 (1985) (likening the newborn to a fetus, lacking
personhood and any attendant right to life).
40 EVANGELIUM VITAE, supra note 19, ¶¶ 56, 58, 64 (discussing the death
penalty, abortion, and euthanasia, respectively, as manifestations of the “culture of
death”).
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amount of collaboration, but ultimately
responsibility is fixed with team leaders and, even
after much wailing and gnashing of teeth and
debate and disagreement, the decisions finally go
to those team leaders.
The other Catholic principle in running the
office is personalism. That’s a term the Pope has
brought back into fashion now, but back when I
was at Fordham, really it was something identified
with the fairly obscure French philosopher
Mounier. That means seeing my co-workers as
being three-dimensional human beings, not cogs,
not means to my end of having a successful office,
but people who have spiritual, moral, emotional,
psychological, family, individual dimensions.41
So those are sort of the more concrete ways
in which my Catholicism informs my work. As to
how my Catholicism hinders my work, first let me
follow up on the suggestion that there might be a
problem having to press for substantively the most
favorable results, notwithstanding what I might
suspect is the most just result, whether that’s a
problem; it’s not. I mean I think as Catholics we
should take great pride in the Catholic
contributions to jurisprudence, and I think we
should be aware that a Spanish priest named
Suarez was the virtual founder of international
law.42 I think we should be aware that what we
think of as being the common law tradition of
Protestant England is in fact, as Norman Cantor
points out, really the fruit of Catholic England.43 I
41 See, e.g., Seth D. Armus, The Eternal Enemy: Emmanuel Mounier’s Esprit
and French Anti-Americanism, 24 FRENCH HIST. STUD. 280 (2001), available at
http://muse.jhu.edu/journals/french_historical_studies/v024/24.2armus.pdf (outlining
personalism’s “essential concepts” as spirit, civilization, and culture, and its goal as
“[reconciling] the old conflict between individual and community”).
42 See, e.g., Mark Weston Janis, Religion and International Law, ASIL
INSIGHTS, Nov. 2002, http://www.asil.org/insights/insigh93.htm (“The [Sixteenth]
Century Spanish Catholic priest[] Suarez . . . [is] often viewed as among the
founders of the modern discipline of international law . . . .”).
43 See NORMAN F. CANTOR, IMAGINING THE LAW 190 (1997) (“The point of deep
inauguration of the common law had been reached by the start of the reign of
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think we should know that medieval canonists
really were the people who instituted many things
we identify with due process today, such as
recordation and rules of evidence. I think we
should know all that, take pride in it.
But I also think that we should be realistic
about our less glorious moments. One is, of course,
the Inquisition. Now, Henry Kamen says, and
argues pretty well, that the scope and severity of
the Inquisition has been exaggerated over
history,44 and that’s probably true. But I mean,
let’s be honest, it was no bargain, right? I think to
imagine that we would want to have an
inquisitional system of justice, as opposed to an
adversarial system of justice, I mean that’s
unthinkable to me. I have no problem—as a
defense lawyer—I have no problem at all, holding
the prosecution to their burden of proof beyond a
reasonable doubt; I have no problem advancing the
interpretation of the evidence that will best fit the
needs of my client.
Do I wish that there was a finer integration
of Catholic thinking and the adversarial system?
Are there times when I sort of have pause? Back
when I was a lawyer at Legal Aid in The Bronx, I
can remember getting a plea bargain for a guy, a
kid, who was just a compulsive rapist, and I
remember being troubled thinking that this kid’s
going to be out on the street earlier than he should
be, if he ever should be. I mean this kid would
rape just as sure as this pen now drops to the
podium. So am I troubled? Yes, at times. By the
adversarial system? Yes, at times. But do I think
there’s a better system? Not that I’ve heard of—
and I’m all ears.
Edward I in 1272 and significant judicial growth and adaptation continued to the
end of the reign of Henry VIII [in 1547].”).
44 See HENRY KAMEN, THE SPANISH INQUISITION 305 (Yale Univ. Press 1998)
(1997) (“Bearing in mind the very small number of Protestants ever executed by
Spanish tribunals, the campaign against the Inquisition can be seen as a reflection
of political and religious fears rather than as a logical reaction to a real threat.”).
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There is an odd way, though, in which my
Catholicism does impair me, not in the courtroom
but in dealing with my clients at times. Many,
many capital clients, notwithstanding what some
cynical prosecutors would have you believe, many
of them truly do come to grips with, and are
genuinely contrite about, what they have done.
Not all, however. At the risk of sounding old-
fashioned, I worry about the souls of some of my
clients, or some of my past clients. It’s a tricky
thing, because you cannot—with many clients—
you cannot advocate for them effectively, have the
trust that is required to represent them capitally,
and at the same time in any way confront them
over what they have done.
There was a lawyer in the Deep South who
represented a fellow. The lawyer picked the case
up on state post-conviction, got the case, lost on the
petition in the trial court, won in the appeals court,
won again in the next appeals court, went back to
remand in the trial court, and basically there was
going to be relief now. The widow of the victim for
whose death the defendant had gotten the death
sentence was in the courtroom. The defendant said
to the lawyer, “Well, what’s she doing here?” The
lawyer, not in a hostile, not in a nasty, not even in
an accusatory way, maybe slightly accusatory,
said, “You know, you ruined her life. You killed
her husband.” Well, it would be putting it mildly
to say the tenor of client-attorney relations
changed with that remark.
I hope I haven’t been too roundabout, but
just to be clear, I don’t mean to be presumptuous in
saying that I’m such a great moral guy, that it’s my
job to do it, but it is hard sometimes engendering
the sense of moral responsibility that some, maybe
a minority, of capital defendants lack. Let me just
say one other thing actually, a way in which my
Catholicism is a bit of a hindrance to me as an
advocate, not as a lawyer but as an anti-death
penalty advocate. I think that the death penalty is
played with a lot intramurally within the Church.
I was on a panel a few years ago in Texas with a
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very well-known Jesuit, and he got up and he
talked about the death penalty. He didn’t like the
death penalty at all. He was thrilled that the
Church now opposed the death penalty, but he was
even more thrilled that this was evidence that
Church teaching can change—zing, zing—because
that’s sort of the liberal Catholic agenda, right? So
the implication is, if we can change on this, we can
change on all these other things, right? That was
where his focus was, right?
And then I was at another program where I
heard a very distinguished and fine Jesuit
speaking about the death penalty, and that
Jesuit—a very, very distinguished scholar and a
fine man—he rendered a version of current Church
teaching which would be beyond recognition to
anybody who has read the Encyclical The Gospel of
Life or the Catechism. The point is that this
wasn’t because he was pro death penalty; it was
because he feared the idea that if there was
precedent for change in Church teaching, well then
we’re on the slippery slope and all hell is going to
break loose.
That stuff as a Catholic ticks the heck out of
me, infuriates me. I think it makes the Church
look stupid, very stupid, which it has been pretty
good at lately, and it really reduces things to
gamesmanship. I probably get a little more
irritated about that than I should, and I’d probably
be a better advocate against the death penalty if I
summoned more patience.
Just a few minutes to address District
Attorney Hynes’ remarks—first, I’m glad that he
talked about the facts of the murders that he has
prosecuted, because I think often—I don’t know
what the division in the audience is pro-death
penalty/anti-death penalty—but I think often
people lose sight of the fact that these are typically
hellacious crimes, horrible crimes, with
tremendous, tremendous suffering, not just
suffered by the decedents prior to their death, but
suffering that reverberates into their family and
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their loved ones. I think it’s important to be
attentive to that.
I also, listening to District Attorney Hynes,
was reminded of what Niebuhr, that great Catholic
theologian, said. He said, in the world you can
either be pure or you can be responsible, but you
can’t be both.45 I think that, notwithstanding
District Attorney Hynes’ personal opposition to the
death penalty, he has chosen to be responsible. He
and I have disagreed about things. I’m sure we
will again in the future, but I have to say that in
certain respects he has been among the most
responsible capital prosecutors in the state.
I would disagree—although I’m a little deaf
in one ear, so it may be my hearing at fault and not
the District Attorney—but I do think that the
Church teaching is a little stricter against the
death penalty than perhaps the District Attorney
does. When I read the Encyclical, I read that we
“ought not go to the extreme of executing the
offender except in cases of absolute necessity;”46 in
other words, when it would not be possible
otherwise to defend society. Today, however, as a
result of steady improvements in the organization
of the penal system, “such cases are very rare, if
not practically non-existent.”47 I think a good-faith
reading of this is that if you do have life without
possibility of parole, if you are in that civilized
setting, then the death penalty is off the table.
Thank you very much.
Mr. Cody: District Attorney Hynes will have ten minutes to
respond to Mr. Doyle’s remarks.
Mr. Hynes: First, I agree with Kevin’s observation about my
responsibility. I guess there are two things that
45 See REINHOLD NIEBUHR, MORAL MAN AND IMMORAL SOCIETY 264 (SCM Press
1963) (1932) (“Nothing is clearer than that a pure religious idealism must issue in a
policy of non-resistance which makes no claims to be socially efficacious.”).
46 EVANGELIUM VITAE, supra note 19, ¶ 56.
47 Id.
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trouble me. They’re not really about Kevin’s
presentation, but about what the state of the
record is. One of the disagreements we had
publicly was—I said to one reporter that Kevin had
spoken to, “This is not Alabama.” That’s the
perversity of it. We are unlikely to make the kind
of mistakes—intentional mistakes, maybe, that’s
not a mistake. We’re unlikely to do that in New
York State. That’s the perversity of this statute.
The second thing that troubles me is I think
a fair reading of Avery Cardinal Dulles’ speech
here at Fordham six years after The Gospel of Life
Encyclical by the Holy Father makes it very clear,
according to Cardinal Dulles, that “[t]he Catholic
magisterium does not, and never has, advocated
unqualified abolition of the death penalty.”48 I
know of no official statement from popes or
bishops, either past or present, that denies the
right of the state to execute.
For me it would be very simple if the Pope
said tomorrow, ex cathedra, “capital punishment is
wrong; it’s immoral.” Then I have no problem. I
recuse myself as a Catholic. I think that might
lead to Pataki removing me, as he did Johnson, but
I don’t conceive of him ever removing any of the
district attorneys. I think he finally realized that
it was a mistake that he did. So that’s easy for me
if the Church was clear about it. But they’re not,
and I don’t know why the Holy Father is not so
clear. If he has evolved to a point that he agrees
with the Catholic bishops that it’s wrong, then say
so for heaven’s sake. Those are the two
observations I have.
Mr. Cody: Questions from the field?
Question: District Attorney Hynes, isn’t it enough that the
Catholic Bishops—U.S. Bishops—have issued a
strong statement in opposition to the death
48 Avery Cardinal Dulles, The Death Penalty: A Right to Life Issue, Laurence J.
McGinley Lecture at Fordham University (Oct. 17, 2000) (transcript available at
http://pewforum.org/deathpenalty/resources/reader/17.php3).
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penalty?49 Isn’t that enough for a Catholic to say
that there is some sort of conscientious objection
that can go on there to the death penalty?
Mr. Hynes: They don’t carry the force, effect, or authority of
the Holy Father. You know, God knows, we all
know, those Catholics among us, that the Catholic
Bishops have been at divide with the Holy Fathers
past and present over a number of issues.50 So I
don’t think they have the authority I look for as a
Catholic. That would come only from the Holy
Father.
Mr. Cody: Would you like to respond?
Mr. Doyle: I agree with District Attorney Hynes that the
Bishops’ Conference—you have to be attentive to
them but they’re not binding. Avery Cardinal
Dulles actually is the second Jesuit to whom I
referred in my remarks. I would urge you—
because this is all arguing about how many teeth
the horse has when the horse is outside—to read
the Catechism yourself. Note that it was revised
specifically to strengthen its opposition to the
death penalty. Read the Catechism itself, read The
Gospel of Life, and then read Avery Dulles’
treatment.
Avery Dulles doesn’t even mention the
term. When he gave the address at Fordham, he
didn’t even mention the term “absolute necessity.”
49 See A GOOD FRIDAY APPEAL, supra note 4 (calling on Catholics to oppose
capital punishment). But see Joseph Cardinal Ratzinger, Worthiness to Receive Holy
Communion ¶¶ 2–3 (June 2004), available at http://catholicculture.org/docs/doc_
view.cfm?RecNum=6041 (explaining that capital punishment, unlike abortion and
euthanasia, does not obligate conscientious objection by Catholics).
50 See CARL BERNSTEIN & MARCO POLITI, HIS HOLINESS: JOHN PAUL II AND THE
HIDDEN HISTORY OF OUR TIME 509 (1996) (“In January 1995, French bishop Jacques
Gaillot was summoned to the Vatican and removed from his diocese with no prior
warning because he had insisted on speaking out in favor of married priests, the use
of condoms by people with HIV, and respect for committed homosexual
relationships.”); Helen Hull Hitchcock, Bishop Criticizes Vatican, Praises ICEL,
ADOREMUS BULL., May 2000, http://www.adoremus.org/0500-Trautman.html
(“Recent statements by Erie Bishop Donald Trautman sharply criticized Vatican
‘interference’ in the affairs of bishops and national conferences concerning the
liturgy.”).
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I don’t think that was because he was trying to be
cute or because he likes the death penalty, because
he doesn’t. But, because he is concerned about the
stability of the Church, he is trying to minimize
that there has been a definitive shift in Church
teaching. But read it yourselves. You can pull this
up on the Web.
Mr. Cody: We’ll take the next question here.
Question: I wonder whether District Attorney Hynes might
agree that there are at least two instances when
the death penalty is a deterrent: a failure to return
a kidnapped victim alive—the result is the death
penalty; a person serving a life sentence for murder
who commits another murder in aid of an escape
from that life sentence?
Mr. Hynes: Well, I mean, again, I’m not persuaded that either
one necessarily should trigger capital punishment.
I think as to the latter, it has a lot to do with the
Department of Corrections and the way it deals
with someone who is permitted to roam an
institution so that he kills again. Again, I go back
to whether or not capital punishment, however
horrible it is, deters. I don’t think there’s any
evidence that either kidnapping or any other form
of murder is deterrable.
Mr. Doyle: Can I try to respond?
Mr. Cody: Please.
Mr. Doyle: You know, sir, I think that those are intriguing
questions. I point out, though, two things. Most
often those questions are raised by people who
don’t want a narrow death penalty; they want a
death penalty which is as broad as the one we have
now, which is a murder thing.
Secondly—and this is just something to
think about, right?—since 1995, there have been
fifty-seven death notices filed around New York
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State.51 Not one has come out of a prison. I think
in the abstract you’d say, “Yeah, if a guy is doing
life without parole, you need something extra to
deter him.” But it’s telling that not one has come
out of the prison.
Questioner: Therefore, it would be rare to impose the death
penalty in such a case?
Mr. Doyle: You know what? If we had a narrow statute that
just had that, I’m not going to lose any more sleep
than I did had I been more than a child when
Eichmann was killed.
Question: Thank you. So back to Catholic teachings—on
which I am not an expert, and I only had a chance
to very briefly read some of the materials here—it
seems to me that you are talking about whether
the Catholic Church or the Holy Father is against
the death penalty and not saying any more. It
seems to me from what I’ve seen that he is against
the death penalty unless it is necessary, and with
that qualification, why is that not a position that
Catholics must adhere to and must evaluate the
situation? If in fact there is no necessity, then the
Holy Father says you’re supposed to be against the
death penalty.
Mr. Hynes: I don’t know why there’s any hesitance. I mean it’s
like him telling me that he has an opinion on the
Mets. I have an opinion about the Mets too, and its
not a very good one. I don’t know why it’s so
complicated, except that—and this is a terribly
cynical thing for a Catholic to say—I look at the
polling data and I’m reminded that the Church
listens to the media, just like the United States
Supreme Court listens to the media. The polling
51 See Capital Defender Office, Defendants Subjected to a CPL 250.40 Notice
(Death Notice) by Counsel Type and Outcome, 9/1/95–9/30/04, http://www.nycdo.org/
caseload_040930_current.html (last visited Oct. 21, 2005) (listing fifty-eight death
notices filed in New York State since 1995).
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data is shocking to me. The vast majority of
Catholics in this country favor the death penalty.52
Now, there has been a decided drop in that
number, from 79% to 69%, over a ten-year period.53
When the Quinnipiac Poll came out in 1995 or
1996, it found that most people—they didn’t
identify Catholics—most people in this state
believe, as I do and as Kevin believes, that life
without parole is a far more punishing sentence.54
And then it has this incredible statistic: that 60%
would still favor the death penalty.55
Look, I’m not going to quarrel with the
Pope, it’s not good for my immortal soul, but I don’t
know why it’s so complicated. Let him say what he
means, and he can do that ex cathedra. He can say
it from the Chair of Peter and it becomes powerful,
authoritative, and for me that ends it, and it
probably ends it for most of our prosecutors in New
York State—elected prosecutors, who are Catholic.
Question: I know we have spoken a lot about the Pope, and
rightly so in this context. What about Jesus? You
are both Catholics. Do you have any ideas on
52 See Joseph Carroll, Gallup Org., Gallup Poll: Who Supports the Death
Penalty? (Nov. 16, 2004), http://www.deathpenaltyinfo.org/article.php?scid=23&did=
1266 (“More than [seven] in [ten] Protestants (71%) support the death penalty, while
66% of Catholics support it.”).
53 Recent findings suggest that the number of Catholics against the death
penalty have increased substantially more than 10%. See Public Opinion: Zogby Poll
Finds Dramatic Decline in Catholic Support for Death Penalty,
http://www.deathpenaltyinfo.org/newsanddev.php?scid=23 (last visited Oct. 21,
2005) (“A national poll of Roman Catholic adults conducted by Zogby International
found that Catholic support for capital punishment has declined dramatically in
recent years. . . . The poll revealed that only 48% of Catholics now support the death
penalty.”).
54 See Gregg Birnbaum, Poll: Life Sentence Worse Than Death, N.Y. POST, Mar.
26, 1998, at 18 (“The [Quinnipiac] poll revealed that [54%] believe life without parole
is a harsher sentence than capital punishment, while [41%] said the death penalty is
worse.”).
55 New data reveals that the percentage of New Yorkers favoring the death
penalty may have dropped slightly under 60%. See Frequently Asked Questions
About the Death Penalty, New Yorkers Against the Death Penalty,
http://www.nyadp.org/media/factsheet.pdf (last visited Oct. 21, 2005) (“In a poll
released by Quinnipiac University in March 2003, [57%] of New York residents favor
the death penalty compared with [37%] who oppose it.”).
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Jesus and death penalty? And what made, in your
opinion, South Africa, when Mandela was released,
almost immediately abolish the death penalty—
something which you would have understood that
they would have said, “Okay, now it’s our turn?”
Not only did they abolish it, they set up a
Commission of Truth and Reconciliation. In my
view, that’s moral superiority to the United States.
That’s my view. How do you explain that—Jesus
and South Africa?
Mr. Cody: Take each question in turn, starting with the Jesus
question.
Mr. Hynes: I think if you look at the writings about Jesus,
there doesn’t appear to be, from what I look at, any
definitive statement from Jesus on the death
penalty, on the execution, on the taking of life. So
I guess one could argue that if Jesus wasn’t
opposed to it, why should the Pope? That may be
my misreading because I’m not a theologian,
obviously.
South Africa is easy for me. They are more
progressive than we are. I mean the problem, as I
said before—and I’m not here to bash or attack the
Governor—the plain fact is the public was told that
murder rates would drop. They were already
dropping—dropping dramatically, for a hell of a lot
more reasons than the establishment of the death
penalty. I assure you that there was no convention
of potential murders in 1995 saying, “Uh oh, we
better knock it off because Pataki’s in.” I mean it
would be absurd to believe that. But South Africa
is more progressive on this issue than we are.
Mr. Cody: Kevin?
Mr. Doyle: You know, on Jesus, I said at the beginning that I
can imagine circumstances in which the death
penalty is not only permissible but obligatory.
Obviously, if I thought Jesus thought otherwise, if
I thought Jesus was a pacifist, then I would have
to reject the death penalty under all circumstances.
I do think it’s very telling that there is, of course, a
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penalty phase that occurs in the New Testament,
when the woman is caught in adultery and they
catch her on the spot. It’s a capital offense and
part of it goes to the cohesion of the community.56
He, of course, basically commutes the sentence.57
Here’s what I think is most clear from the
New Testament: that the ethic should be one not of
retribution, but of mercy. If you had to sum up the
New Testament in one word, it’s that. That’s not
trying to make Jesus out as some kind of a hippy, a
mellow guy. I mean that is what is there,
forgiveness and mercy. So certainly there’s no
retributive justification for the death penalty in the
New Testament. Therefore, if under some
circumstances responsibility requires us to inflict
it, once those circumstances have fallen away—as
they have in this society where we have life
without parole—then I think we can more
genuinely embrace the ethic of forgiveness and
mercy.
Mr. Hynes: God forgive me, I’m not nearly as Catholic as Kevin
is. Listening tonight, I’m very, very proud of his
Catholicism to some extent. But I have no mercy
for someone who kills the way Michael Shane Hale
killed. I think he should be locked up in a hole for
the rest of his life. I think he should be held
without any communication with any other human
being for ending the life of another person, that his
life should be over. So I can find no mercy for
those kind of people. My argument on the issue is
I believe life without parole is a hell of a lot more
punishing.
Mr. Cody: Mr. Doyle, do you want to comment on South
Africa?
Mr. Doyle: No.
56 John 8:4–5 (New American) (“They said to him, ‘Teacher, this woman was
caught in the very act of committing adultery. Now in the law, Moses commanded us
to stone such women.’ ”).
57 See id. at 8:7–11.
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Mr. Cody: We’ll take the next question then.
Question: Hi. Good evening. District Attorney Hynes, you
mentioned before that you would recuse yourself
from a case involving the death penalty if the Holy
Father says that the death penalty is now
immoral. It seems to me that is the problem that
we Catholics have faced when we enter
government. I know J.F.K. faced that when he ran
for President. How do we respond to a situation in
which the Vatican takes a position that is different
from what the Constitution obliges you to take,
which is pretty much set forth?
Mr. Hynes: I mean look, the Vatican has taken a very, very
strict position on abortion. My position is that I
think abortion is appalling, but I can never think of
anything that would lead me to believe that a
woman should be prosecuted for having an
abortion. I hope that doesn’t sound pro life or pro
choice, because I don’t talk in those metaphors.
That’s a position, I suppose, which could lead me to
be denied communion. I hope that doesn’t happen.
But the death penalty decision is an infinitesimal
part of my decision-making as the District
Attorney. It’s a very, very small portion. I think I
can limit my recusal based on that reality. I don’t
always agree with the Church.
Mr. Cody: I had a question on that. District Attorney Hynes,
it seems like you acknowledge that the Catholic
Church has, at least to some degree, opposed the
death penalty. But I believe you also stated in the
very opening portion of your remarks that that
doesn’t influence you at all. I suppose the
question, or the conflict, that ran through my
mind—to paraphrase St. Thomas More, and that I
think this is at the crux of our discussion tonight—
is: are you then God’s good servant but Kings
County’s first?
Mr. Hynes: Well, God’s good servant is not listening to the
teachings of his Church, because the teachings of
the Church are at best ambiguous. It’s one thing to
say, “Look at his words. He’s pretty clear, isn’t he?
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He doesn’t like the death penalty. He’s for
abolishing it.” Well, say so for heaven’s sake. So
until the Church, or the Church through its Holy
See, says definitively it is immoral, then I have to
do my responsibility the way it is. Maybe I won’t
have to worry about that if the legislature doesn’t
restore the death penalty. I don’t think, by the
way, that is going to happen. I don’t think they are
going to restore it.
Question: If in fact the Holy Father did come out with the
pronouncement that you’re looking for, and you
decided that at that point you would take the
position that you would not impose the death
penalty, not seek the death penalty, in cases in
Kings County, do you think you would ever be
elected District Attorney again?
Mr. Hynes: Oh, absolutely, absolutely. My electorate, at least
the primary, tends to be much more progressive. I
think they cluck their tongue when they see me
asking for the death penalty because they know
overall I’m pretty progressive. But sure, I won’t
lose the election on the death penalty issue.
Mr. Cody: Over on my far left.
Question: District Attorney Hynes, don’t you ever envision a
time when you might have greater insight to the
good, the bad, or the evil than the Pope or
somebody else? Don’t you envision the possibility
that you might see this is the wrong thing, as
opposed to the Pope waiting to make a decision?
Mr. Hynes: Well, at sixty-nine I have a lot of room. I mean
Morgenthau is eighty-three. I have a lot of room.
Yes, I can see evolving. There was a kid—from not
Kevin’s group, but I guess from the Legal Aid
defenders’ group—who threw my words back at me
when I said at some point early in my career that
we’re as bad as those who kill. I no longer hold
that position.
Ms. Uelmen: I have a question. What struck me as you were
both setting out your overview are the similarities
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in your views, and how on one hand Kevin’s view
could be stated also without the Catholic support.
I mean there are plenty of arguments against
racism and the practical concerns that are also
expressed in Church teaching, but don’t necessarily
have to be articulated in that way; and, vice versa,
in that it’s not necessarily a bad thing from a
religiously informed perspective to be deep
background to one’s pragmatic approach to the
practice of law.
So my question for you, District Attorney
Hynes, is whether it bothers you that someone
would be more explicit about the religious support
for their political perspective?
And for Mr. Doyle, my question is whether
it wouldn’t make sense to try and be a little more
implicit for the sake of public argument in terms of
how much you bring in your Catholic perspectives,
and whether just to try to articulate them in a way
which is not so heavily laden with religious support
and imagery?
Mr. Hynes: Amy, forgive me for revealing my limitations. I
didn’t understand the first question.
Ms. Uelmen: The first question is: you’re very similar in your
opposition to the death penalty and the way you’ve
articulated what are the specific, practical reasons.
The difference between the two of you is that Kevin
uses the religious support and imagery as a
foundation for his argument, whereas you don’t use
that as the basis. So does it bother you that he’s
explicit?
Mr. Hynes: No, not any more than we seem to have different
views, because I’m a recovering defense lawyer too.
I’m not nearly as troubled as Kevin is by some of
the clients he has represented. No, not at all,
because I’m not troubled, in particular, because I
don’t think the Church has spoken with a clear,
authoritative voice. Again, I raise the question,
“Why hasn’t it?”
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Ms. Uelmen: And, Kevin, for you the question is: why not just
make the leap and talk in more secular terms, just
for the sake of the conversation?
Mr. Doyle: My answer is three-fold. One, I’m not here as a
capital defender. I was invited for that reason, but
I’m just speaking to you as a Roman Catholic who
has been doing capital defense work for a long
time. As a capital defender, not only do I not have
a Catholic position against the death penalty, I
don’t even have a position against the death
penalty as a matter of policy. Our office is a right-
to-counsel office. As Art Cody said, it’s not a think-
tank, it’s not an ethics institute, it’s not a
seminary. So that’s my first response.
My second response is that I think the
truths that I am talking about—I don’t mean to
say sound theologically chauvinistic, but I think
there’s a lot more sophistication in the appreciation
of human nature in the Catholic tradition than in
the Protestant tradition, for instance. I mean
when I was in the South, I had friends who really
thought, “Man, you are a shoe-in for Heaven,” or
“you are bound to go to Hell,” where things were
very black and white. I think Catholics have a
much—if you read Graham Greene or Flannery
O’Connor or Mary Gordon or people like that, or
the spiritual works of Ignatius Loyola or Thomas
Merton—I think there is a much more
sophisticated grasp of human fallibility and
complexity, and I think those things play in. I also
think that—look, for better or for worse, for all its
sexism and shortfalls, the Church is clearly the
voice on the sanctity of human life today. I
genuinely believe that.
My third response is that I am for the most
part liberal myself, but I have to say one of the
great liberal intellectual scams of the past fifty
years is to make people who are religious think
that their religious starting points are any less
valid than the secular starting points of their
neighbors. I mean if a person can get up and speak
from their Freudian or Jungian, Millsian or
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laissez-faire lens, or whatever, perspectives—how
in the name of goodness would someone who
happens to be Roman Catholic, or who doesn’t
happen to be, who chooses to be Roman Catholic—
why should I be hindered? I think there is a
fundamental misunderstanding about the
separation of church and state. It’s not a
separation of religious morality and policy. I hope
I have answered you fully.
Mr. Cody: Up front?
Question: I’m a little confused because I’m under the
impression that Christ did have a point of view on
the death penalty. In fact, he embraced it at his
own execution. Without it, we wouldn’t have the
Catholic Church; he wouldn’t have been able to
carry his message of forgiveness. So it’s a paradox,
but it seems that he knew it had to be that way.
Without it, we wouldn’t have Catholicism.
Mr. Doyle: Well, of course, that argument would mean what
Christ was really endorsing was the execution of
the innocent. I’m not willing to follow that logic—
do you work for Mel Gibson?
Mr. Cody: District Attorney Hynes, do you want to comment
on that?
Mr. Hynes: No.
Mr. Cody: Next question?
Question: I have two questions. For the District Attorney—
what if, as in some other cases in the United
States, the Pope did present a position and
conveyed that position to New York State or to you
specifically? You know, if people petitioned the
Pope and then the Pope responded by saying, “Yes,
I think that.” I think he has done that in other
cases. What if he did that? Would that put you in
an untenable position? How would you handle
that?
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And then my question for Mr. Doyle is—I
think as a young lawyer, my sense as a young
lawyer is that you don’t always choose your first
job by philosophy, but by the job that you get, the
job that you interview for and they give you. Can
you imagine a situation for yourself—envision that
your life might have taken a different route, and
instead of going from Legal Aid to Wall Street and
getting that first pro bono case, that you could
have ended up in Mr. Hynes’ position and
reconciled your feelings as a Roman Catholic with
the decisions you would have to make under the
current law?
Mr. Cody: District Attorney Hynes?
Mr. Hynes: In terms of commuting the death penalty, I don’t
have the authority on that.
Questioner: But if he asked you not to pursue it.
Mr. Hynes: Well, if he asked me not to pursue it—well, first, it
would be a kick talking to him. I would say, “Now
listen, Holy Father, why don’t you say what you
mean?” And then he’d excommunicate me and that
would be the end of the discussion. No, I wouldn’t
be persuaded unless he was very clear.
Mr. Doyle: Actually, my Dad was a police officer, and one of
my heroes is my uncle who was an organized crime
prosecutor growing up. So it’s perfectly conceivable
in a different universe that I would have ended up,
certainly not as the illustrious elected District
Attorney of Kings County, but as a prosecutor.
Mr. Hynes: I’m happy to hear that.
Mr. Doyle: I often see God’s grace in not putting me on that
path, because I sometimes fear that I would have
been a hellaciously ruthless prosecutor—not
merciless finally, but at times I think I would have
been tempted to bend the rules unto breaking to
get the bad guy. However, I don’t think I would
have been tempted ever to seek the death penalty.
I think Denis Dillon in Nassau County says that he
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considers the death penalty and he uses the test of
absolute necessity, which by coincidence is the test
that our Church tells us to use.58 I’d keep an eye
out for a case in which I didn’t think we could
incapacitate somebody short of seeking their
execution. At least until that case came along, I
would remain in good conscience and in office.
To go back to the recusal thing that came
up before, not to be overly pragmatic, but keep in
mind when you recuse yourself, if you recuse
yourself because you’re not bloodthirsty enough,
the guy or the gal that they are going to put in
after you is going to be plenty bloodthirsty. So
there is a practical aspect of this.
Mr. Cody: In the rear?
Question: In one respect the panel seems sort of unbalanced,
in that both of you say that your faith dictates your
opposition to the death penalty. I was sort of
hoping there would be a Catholic whose faith led
him to support the death penalty here. In another
respect, you are similar in a way that has been
noted, in saying this is highly complex and so forth.
But isn’t it possible that the Holy Father’s
pronouncement is, as you said, District Attorney,
ex cathedra? There is no Church doctrinal
pronouncement on this, unlike abortion, where we
all as faithful, loyal Catholics have an unwavering,
absolute obligation to oppose the killing of the
unborn?59 It’s a little more nuanced and complex
with respect to convicted criminals.
58 See Joe Feuerherd, Paths Differ for Politicians Grapping with Faith’s
Demands, NAT’L CATH. REP., May 23, 2003, available at http://www.findarticles.com/
p/articles/mi_m1141/is_29_39/ai_102554561 (“ ‘I apply a standard in discerning
whether to use that statute, which is not really in the law—the standard that has
been set forth in [the March 1995 papal encyclical] Evangelium Vitae and also in the
Pope’s comments.’ ”) (quoting Denis Dillon) (alteration in original).
59 See EVANGELIUM VITAE, supra note 19, ¶ 58 (“Among all the crimes which
can be committed against life, procured abortion has characteristics making it
particularly serious and deplorable. The Second Vatican Council defines abortion,
together with infanticide, as an ‘unspeakable crime.’ ”) (quoting SECOND VATICAN
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Therefore, the Holy Father hasn’t been
stupid; he hasn’t been lax. It’s not a political
matter. He has very judiciously and very carefully
said, “This is a prudential matter that we should
leave to the states and the various civil authorities
to decide.”60 Therefore, in our country the test of
absolute necessity has to be decided here. I wonder
really whether absolute necessity is only the test of
recidivism or retribution. I mean, isn’t it possible
that upholding the very sanctity of human life—
that is the sanctity of the human life of the person
who has been killed, in very prudential certain
cases, and I’m not opining on whether we have
done it right—but isn’t it possible that upholding
that very sanctity of human life would dictate that
the death penalty is appropriate, just to uphold the
sanctity of human life, not because of recidivism or
because of retribution?
Mr. Cody: District Attorney Hynes?
Mr. Hynes: Well, my view of this is that there is nothing that
supports any benefits to the death penalty. There
is nothing that I’ve had in my experience as a
lawyer all these years that has suggested to me
that the death penalty has any positive things
coming out of it. Yes, people will say, “Well, it
deters that S.O.B. because he’ll be dead.” I guess
that’s the strongest argument that I hear. But it is
never framed in that context. It’s always framed in
the context, “it’s deterrence.” It’s not. I thought I
made it pretty clear that the Catholic Church,
given the current state of the record, does not
influence my decision because it hasn’t spoken
with any clarity as far as I’m concerned. Kevin
takes the opposite position, but that’s my position.
COUNCIL, GAUDIUM ET SPES: PASTORAL CONSTITUTION ON THE CHURCH IN THE
MODERN WORLD ¶ 51 (1965)).
60 See id. (“[P]unishment must be carefully evaluated and decided upon, and
ought not go to the extreme of executing the offender except in cases of absolute
necessity . . . . [A]s a result of steady improvements in the organization of the penal
system, such cases are very rare, if not practically non-existent.”).
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Mr. Doyle: Who here does not have access to the Net? Good. I
beg you now—since I beg for people’s lives, this is
easy—I beg you to look at the Catechism and see
what it says. The Pope never uses the term
“prudential judgment.”61 “Prudential judgment” is
something Scalia uses.62 Scalia, who in his Atkins
dissent, had no problem taking a cheap, gratuitous
shot at the Church by noting our current troubles
with the abuse scandals.63 The “prudential
judgment” is something Scalia injects. Or Avery
Dulles, who again, I admire both him and his
concerns for the stability in Church teaching, but
he does not serve up Catholic teaching neat and
straight.64 And, by the way, he’s also a fabulous
theologian but not a moral theologian. I beg you to
get on the Net and look at what the Catechism
says and see if there is any room for the notion
that absolute necessity can be defined in terms
other than incapacitation. I submit to you that a
good-faith reading of what the Church teaching
is—the only good-faith reading—is that currently
we have reached the point where if we are able to
incapacitate someone, then it is not morally right
to execute them; that is not permissible.
Mr. Hynes: The joy of being a lawyer, because you hear from
other lawyers—”that’s the only interpretation you
61 See, e.g., CATECHISM OF THE CATHOLIC CHURCH, supra note 2, ¶¶ 2266–67
(demonstrating that the Pope instead asserts that the death penalty should be used
in cases where it is an “absolute necessity”).
62 See Atkins v. Virginia, 536 U.S. 304, 339–40 (2002) (Scalia, J., dissenting)
(noting that the death penalty should be utilized because the Constitution allows for
the execution of individuals subject to the “modern standards of decency” which are
enacted by the country’s legislatures).
63 See id. at 347 n.6.
The Court cites, for example, the views of the United States Catholic
Conference, whose members are the active Catholic Bishops of the United
States. The attitudes of that body regarding crime and punishment are so
far from being representative, even of the views of Catholics, that they are
currently the object of intense national (and entirely ecumenical) criticism.
Id. (citation omitted).
64 See, e.g., Avery Cardinal Dulles, Catholicism & Capital Punishment, FIRST
THINGS, Apr. 2001, at 30 (commenting on the state of the capital punishment issue
in Church teaching and contemporary Catholic theology, faith, and practice); see also
Avery Cardinal Dulles and His Critics, supra note 23, at 7 (compiling various
authors’ responses to Dulles’ article, Catholicism and Capital Punishment).
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can have.” I beg you to look at the Net, too, and I
think you’ll come to a different conclusion than
Kevin tells you.
Mr. Cody: I’m not sure if the Catechism was included as part
of the materials.
Ms. Uelmen: Not everybody’s. I think for CLE purposes it’s
included in the materials. If by chance you didn’t
come for CLE but you’d like the packets anyway
and we’re out, please leave me your business card
and I’ll be happy to send it to you.
Mr. Cody: For those of you who have it and would like to take
a look at it, I think the relevant section is 2267.
Mr. Doyle: Make sure you’re looking at the current one
because, I think I alluded to this earlier, the first
revision that was made in the Catechism was to
strengthen the condemnation of the death
penalty.65 After The Gospel of Life66—after that
Encyclical, the Catechism even made clearer that
we’re not to be executing individuals when we have
the alternative of incapacitating them otherwise.67
Question: Mr. Doyle, in listening to you and in thinking
through this, with respect to the death penalty and
65 Compare CATECHISM OF THE CATHOLIC CHURCH, supra note 2, ¶ 2267
(explaining that while the Catholic Church “does not exclude recourse to the death
penalty,” and permits the death penalty in the rare case it is an “absolute necessity,”
it prefers “non-lethal” means to protecting society and maintaining the aggressor’s
dignity), with CATECHISM OF THE CATHOLIC CHURCH ¶ 2266 (1994) (referring only
briefly to the death penalty as a means of punishment that can in some instances be
“commensurate with the gravity of the crime”); see also Jeff Mirus, Capital
Punishment: Drawing the Line Between Doctrine and Opinion, CATH. CULTURE,
June 7, 2004, http://www.catholicculture.org/highlights/highlights.cfm?ID=15.
66 See EVANGELIUM VITAE, supra note 19, ¶ 9. The relevant section states, in
part, that “[n]ot even a murderer loses his personal dignity, and God himself pledges
to guarantee this.” Id. Illustrating the concept of punishment as incapacitation
rather than retribution, Pope John Paul II quoted from Cain and Abel, “ ‘God, who
preferred the correction rather than the death of a sinner, did not desire that a
homicide be punished by the exaction of another act of homicide.’ ” Id.
67 See CATECHISM OF THE CATHOLIC CHURCH, supra note 2, ¶ 2267 (stating that
the Church prefers non-lethal means to punishing the aggressor, as they are “more
in keeping with the concrete conditions of the common good and more in conformity
with the dignity of the human person”).
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the absolute necessity and the ability to
incapacitate, you would, I take it, approve of the
death penalty in connection with a political or
government leader whose presence in jail for a
lifetime would probably not stop whatever political
movement it was that was causing a problem.
That was the implication of what you were saying.
Mr. Doyle: Right. I think that’s a great question. One of the
hypotheticals I think of as to what circumstances I
could imagine execution being appropriate would
be if Hitler had survived and gone to South
America—and just merely the fact of him being
alive, whether that in and of itself sort of gave
energy and hope to those sick people. Of course,
the counter thing you have to worry about is: are
you creating some kind of a martyr.
Questioner: I understand that. But that is the context? You
said it sort of generally. I wasn’t sure whether
that’s really what you were meaning by the
inability to incapacitate.
Mr. Doyle: Well, the other situation is if you’re in a setting
where there’s no societal order. I mean in Somalia
a few years ago, I don’t know, but my sense is you
were not in a position if you had a murderer to
really be assured that you were going to be able to
put him away forever. I was going to say so you
might have to whack him, which sounds terrible,
but you might have to take that person’s life.
Mr. Cody: We’ll take a question in the back.
Question: Yes. I have a question. This is for Mr. Doyle. If
you say all life is sacred, but yet you won’t indicate
that a killer should be killed, then in essence you’re
saying that the killer’s life is more sacred than the
person or persons whom he killed, because the
victims are subject to someone else’s decision on
whether or not they deserve life, but the killer
should not be subject to someone else’s decision on
whether they deserve life. How do you reconcile
that?
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Mr. Doyle: Let me come back for a second to something I said.
I am a cop’s son. If in one of the cases Mr. Hynes
has prosecuted capitally—if instead of the capital
murder occurring, a police officer had come on the
scene and put a bullet right here [indicating the
forehead] for one of our would-be clients, I wouldn’t
be happy that a life was lost, but I’d be relieved
that the guilty guy died and not the innocent
person. Unfortunately, executing someone, no
matter how clearly guilty they are, no matter how
heinous their crime, executing them is not going to
bring back the victim, number one.
And, number two, I think it is part of our
society’s current Sally Jesse Raphael-afternoon-
TV-B.S.-catharsis ethic of the current society to
think that this is going to be something which
brings healing to the victim’s family. I think that
is a cruel, cruel false hope. And it’s one of the
many things—due to the constraints of time, I
mean, we just skim the surface as to all the
problems with the death penalty. But I think
that’s one of the crueler aspects of the death
penalty, the notion that somehow that is going to
make people feel better or set things right.
Questioner: Well, I think a lot of victims’ families would
disagree.
Mr. Cody: Over there?
Question: This question is for Mr. Doyle. I want to come back
to the communion issue. How should Catholic
public officials who represent populations
including non-Catholics deal with some of the
Archbishop’s threats to refuse communion for those
who support views inconsistent with the Church?68
68 See Patricia Rice, Archbishop Burke Says He Would Refuse Communion to
Kerry, ST. LOUIS POST-DISPATCH, Jan. 31, 2004, at 24; see also UNITED STATES
CONFERENCE OF CATHOLIC BISHOPS, CATHOLICS IN POLITICAL LIFE (2004), available
at http://www.usccb.org/bishops/catholicsinpoliticallife.shtml (stating that the
“polarizing tendencies of election-year politics” can lead to situations in which
Catholic teaching can be abused for political purposes). In fact, according to a survey
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Mr. Doyle: I think three things. I think, first of all, everybody
owes it to their fellow citizens and to the Church to
put things in perspective. It has been a handful of
bishops and archbishops who have done that.
That’s the first thing.
The second thing is I think—and I was
quoted in The Times saying this—it borders on
scandal that even these few bishops seem to only
single out Democrats, not Republicans.69 In fact,
St. Vincent’s, which is in Manhattan—a great
hospital, but it’s controlled from the Brooklyn
Diocese—is about to have a wing named after
Rudolph Giuliani, who’s a double-death
Republican.70 He’s Pro Choice on abortion and he
thinks execution is the best thing since sliced
bread.
So I think those two things. And then,
lastly, I think that public officials, if they are going
to hold themselves out as Catholics, have to be
attentive to the teaching of the Church. And I
think that there comes a point—and this certainly
is not addressed to my co-panelist at all; I have in
mind completely other people. There comes a point
when people have so diverged from the Church on
crucial issues that I, well, I certainly wouldn’t hope
anybody would refuse them communion, for a
variety of reasons. But here’s what I think the
bishops should do—and of course, the bishops,
because so many of them have so mishandled our
child abuse scandal, and I don’t mean to
by Catholics for a Free Choice, four bishops have said they would deny communion
to politicians who support access to abortion; seventeen have urged them to avoid
taking the sacrament; and 138 said they would not readily impose such a sanction.
See Daniel J. Wakin, A Divisive Issue for Catholics: Bishops, Politicians and
Communion, N.Y. TIMES, May 31, 2004, at A12.
69 See Wakin, supra note 68, at A1 (“ ‘It is jarring to hear a small minority of
bishops single out Democratic politicians for their pro-choice thinking and seemingly
not singling out Republican pro-choice Catholics, or pro-death-penalty Catholics of
any stripe.’ ”) (quoting Kevin Doyle).
70 See Dennis Duggan & Pete Bowles, Emergency Is His Name; Hospital
Honoring Giuliani, NEWSDAY (N.Y.), Aug. 13, 2002, at A4 (reporting that the nearest
trauma center to the World Trade Center, St. Vincent’s Hospital, is naming its
renovated emergency department after former Mayor Rudy Giuliani for all his
support during the rescue efforts of September 11, 2001).
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exaggerate that, but obviously, I speak as a father
of three kids, it’s a horrible thing and I think the
bishop’s moral authority has been worn down. But
here’s what I think they should do—I think they
should simply say to Catholic officials who
fundamentally depart from Church teaching,
“You’re welcome at communion, you’re welcome to
Mass anytime you want, you’re part of the flock.
But when you’re running for office don’t use your
Catholicism as an ethnic credential or some
fodder.”
There’s a district attorney in upstate New
York who is an avid, avid capital prosecutor, to the
point in my view that, even if I favored the death
penalty, I would think he has been reckless
fiscally, his legal judgments have been poor, and he
just says anything that comes to his mind when
discussing the death penalty. You go to his
campaign Web site and you would think that the
guy is going to be our next Pope, because every
Catholic credential, every time he has carried the
collection basket, his trusteeship—blah, blah,
blah—is there on his Web site. I think Catholics
should just be asked—and if they don’t want to do
it, fine—but they should be asked that if they are
going to depart that fundamentally from Church
teaching, then they should just not use their
Catholicism because it does confuse people. They
should not use their Catholicism as campaign
fodder.
Question: The Court of Appeals has set off a great debate
among our moral theologians in Albany. The issue
is there are basically three men that control the
judgments of politics and law in New York State.
To turn it around, how do we influence them at
this point? Knowing the objections that seem to be
pretty obvious, and the inadequacies that seem to
be pretty obvious, how do we address those
objections and inadequacies to this troika of deep
thinkers?
Mr. Hynes: As an advocate for the restoration or abolition?
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Questioner: Abolition.
Mr. Hynes: Well, wearing another hat, I’ve been very, very
active in trying to get support to repeal the
Constitution with respect to the Constitution
Convention for selection of State Supreme Court
judges.71 It is a sham. It denies voters the right to
vote. I’m part of a coalition of people, including
various diverse groups of businesspeople and
lawyers. I’ve gotten the State Senate Majority
Leader to the point where he agrees we should
have public hearings on the issue and talk about
the various alternatives. The Assembly has also
given at least preliminary okay. The problem with
the abolitionists in this state is there is no
coordination. That’s the thing that bothered me
with the election with Cuomo and Pataki. I mean
good, decent people who believe fundamentally the
death penalty is wrong never said a word. Now,
maybe it’s because they didn’t like Mario. I don’t
know. I don’t know what the reason was. There
were signs certainly all over the upstate area,
“Time’s Up, Mario.” Did that motivate them?
I know in 1998—and I hesitate reminding
anybody, because I thought some of my family
would be here—when I had my last flight of fancy
and ran for Governor, I was the only one who said
forthrightly, “I will lead a movement to abolish the
death penalty.” Well, you would think that I had
said that in some cavity or the middle of a forest. I
had no support from all these folks who you hear
today all over this state saying, “Let’s abolish it.”
There has to be a coordination of strategy. There
has to be a demand for public hearings, just as
we’re getting public hearings on the issue of
constitutional revocation. There have to be public
hearings so good and decent people of the entire
71 See Press Release, Charles J. Hynes, Dist. Attorney, Office of the Dist.
Attorney, Kings County, Response to Brennan Center Lawsuit Filed in Eastern
District to Reform Supreme Court Selection System in New York State (Mar. 18.
2004), available at http://www.brennancenter.org/programs/downloads/nys_
judicial%20elections_hynes_statement.pdf.
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spectrum—because I don’t reject for a moment
people who honestly believe that the death penalty
is something that is effective for reasons they
believe. I’d like to see the debate publicly
discussed, as we’ve done here at Fordham Law
School. The problem is there is no coalition. There
has to be a coalition.
Mr. Doyle: I think that one thing that should happen is there
should be a fundamental focus on resource
allocation. You can have a death penalty, like
Texas’, and then you can have a capital justice
system which instead of inspiring respect for the
law invites disrespect. You can have that. You can
make mistakes and kill innocent people. Or you
can try to do it right, as New York has.
But then the amount of resource—there’s a
tremendous amount of resources that go in on this
side and on that side when the case is capitally
tried, then appealed, and on and on. Those are
dollars that are taken from other needs in the
criminal justice system. The wisdom is that not
the severity of punishment but the certainty of
punishment is what deters, right? So, whatever we
think philosophically or metaphysically about the
death penalty, we have to think about diverting
this money when it could be going to better police
forensics, more police cars, drug treatment
programs, and that kind of thing.
And what service are we doing victims’
families when we divert money from real victims’
services and instead conscript families into what
are cruel charades? I’m still reflecting on the
comment from the questioner up there. It recalls
to mind one of the worst things I’ve seen here in
my job here in New York. I mentioned earlier that
I worked with the Fordham alumnus Rob Aielo on
a case outside the City. There was a point in the
case. This was a horrible, horrible case in which a
young man was very drunk, his girlfriend was very
drunk, and they had had a terrible, terrible—I
mean “dysfunctional” is almost a foolish word to
use to describe their relationship. In the early
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hours of the morning, he ended up stabbing her
and her children. The sadness of the case is
something I’ll never shake.
This kid, which is what he was, knew what
he had done and felt the full horror of having killed
these children, particularly the children. At one
point in the trial, after some testimony, he just
broke down, wailing, crying, and the crying
continued. You could see, if you were this close to
him, which the prosecutor was, it was genuine, and
it continued when he went back and there would be
no benefit in show crying for anyone. But the
prosecutor went to the family of the victim and
said, “Crocodile tears.” The point was that it was
important for the prosecution to keep that family
raw in its woundedness [sic]. It was important for
that prosecutor to keep that family just seething
with anger and without ever glancing at anything
approaching contrition in that defendant. That is
cruel, it’s politics, it’s showmanship, and it’s not
what serves victims’ families.
Clearly, as a criminal justice system we
have neglected victims for too long—not just the
families of murder victims, but all kinds of victims.
But now that we’re finally getting a better
perspective, we should wonder whether we want to
be spending tens of millions of dollars on a death
penalty, which divides us and really serves no
practical purpose, rather than making for better
deterrence and serving victims and making a
stronger, more moral criminal justice system
overall.
Mr. Cody: We have time for perhaps one more question. Let’s
take the gentleman in the aqua shirt on the far
left-hand side.
Question: I’m not a lawyer.
Mr. Cody: God bless you, sir.
Questioner: But I do share your Catholicism. I have this
question. It’s a question about the Pope and about
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2005] DEATH PENALTY PANEL DISCUSSION 351
Vatican Council II. As the Church has progressed
and changed, it seems that the bishops of the
countries have become more and more active since
Vatican Council II. I know the Pope is infallible,
but I hope that everyone here also knows that the
last general council of the Catholic Church is the
council in power, for want of a better word, or the
council holding. It’s very definite that Vatican
Council II has brought the bishops forward. More
meetings, for example, it’s a very common thing in
various countries for bishops to have their own
meetings.
I’ll cut to the chase because I know it’s the
end. What if—if I may allow, I don’t know if this is
a good legal question—what if the bishops of the
United States gathered together and very clearly
came out with a statement that capital
punishment is wrong? And what if the Pope didn’t
come vaulting into the arena and say anything?
Would the D.A.—would the law enforcement of our
country, go along with the United States bishops’
statement?
Mr. Hynes: You know, you asked the wrong guy. I’m not a
great fan of the American bishops, and I’ll tell you
why. I’ve had active prosecutions of assaults on
children by priests. Only one bishop—and he has
taken a lot of criticism—only one bishop in this
country had the courage to sign a memorandum of
understanding with me as the chief prosecutor that
in the future any violation of a child will be
brought to my attention immediately.72 The
bishops have done nothing but try to skirt the
issue. That doesn’t come from me. It comes from a
72 See Press Release, Office of the Dist. Attorney, Kings County, Kings County
District Attorney Charles J. Hynes and Bishop Thomas V. Daily Sign Memorandum
of Understanding (Apr. 29, 2002), available at http://www.brooklynda.org/News/
press_releases%202002.htm#012. In 2002, Bishop Thomas V. Daily of the Diocese of
Brooklyn and Queens signed a “Memorandum of Understanding” with Kings County
District Attorney Charles J. Hynes in which the Diocese agrees to immediately
report to the District Attorney’s Office all allegations of sexual abuse of minor
children by priests. The document gives an overview of the process by which a report
will be forwarded “without prior screening regarding the truth of the allegations.”
Id.
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guy who is polar opposite, Bill Bennett, who is also
a very, very solid Catholic. He has discussed it
with them. So I’d have difficulty listening to
anything they said.
Mr. Cody: Perhaps one more question.
Questioner: Do you have anything to say, Sir, as a comment on
my question?
Mr. Doyle: Well, look, I’m not inclined to conflate the moral
authority of Church leaders with the fact that they
may have made jackasses of themselves in one
area, number one. I think if you do that, frankly, I
don’t know how you remain Catholic, looking over
our 2,000-year history.
Mr. Hynes: We have great monsignors, too.
Mr. Doyle: We have had some wild ones—I don’t know. The
bosses of those monsignors—we’ve had some
characters.
Mr. Hynes: That’s true.
Mr. Doyle: So I’m not inclined to take that analysis. As a
practical matter, frankly, I don’t think it would
make a big difference.
Questioner: I belong to a group called Voice of the Faithful, so I
joyfully accept everything you’ve just said. But,
Mr. Hynes, it seems like the Church in its changes
requires the Pope to come galloping into the arena
when something important is going on. A case in
point might be that I understand some countries
are against capital punishment and some countries
aren’t. Am I right in that?
Mr. Hynes: Yes, absolutely.
Questioner: All right. So why couldn’t the United States?
Mr. Hynes: I think that the first point I want to say to you is
keep up the work because you’ll make the change—
the Voice of the Faithful. I see no problem. I don’t
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believe I conflate, whatever that word means, the
bishops by taking them on in a fundamental way.
Mr. Doyle: You went to St. John’s, I forgot, not Fordham.
Mr. Hynes: I’m a Vincentian. I just think the bishops came to
an appalling decision on that issue. Could they be
right on the death penalty? Sure. But they don’t
speak with the moral authority of my Church.
Only the Pope does.
Mr. Cody: I think that’s going to conclude our evening. I’ll
turn the microphone back to Amy Uelmen.
Ms. Uelmen: Thank you, Art and both of you, for a fantastic
discussion.